Some Want Discipline to be Punishment. Who Are They?

Senator Joseph Dunn, Executive Director of the California State Bar, had this to say about the Discipline Standards Task Force in the ABA Journal:

The task force’s efforts could be the first step toward a significant revamping of the attorney misconduct sanctions, says the bar’s executive director, Joseph L. Dunn. “This could lead to a substantial rewrite, a minor rewrite, or even a change in basic philosophical approach,” Dunn says. “For example, many disciplinary rules are based on a rehabilitation model. Some believe that attorney disciplinary standards should move to more of a punishment model. The mission of the task force is to determine whether the disciplinary standards in force adequately protect the public and ensure attorney compliance with the ethical rules.”

No one I know who is knowledgeable about the discipline advocates punishment as a goal of the discipline system. Who is Joe Dunn talking about?

 

Senator Joseph Dunn

Senator Joseph Dunn

 

Not the Discipline Standards Task Force.
I have attended both public meetings of the Task Force as a representative of the Association of Discipline Defense Counsel.   I presented the viewpoint of our organization (ADDC Comment re Standards) at the second meeting.  The Task Force has also heard from the Assistant Executive Director Robert Hawley, Chief Trial Counsel, the Office of General Counsel,  a United States Attorney and Federal Public Defender.  The Task Force, ably chaired by Ms. Goodman, engaged in vigorous discussion and a consensus emerged at the second meeting:  no change in the bedrock principle that the purpose of discipline is not punishment but protection of the public; refinement of Standards along the lines of the revision undertaking by the Office of General Counsel last year.

The only mention of the idea that the discipline system be justified in imposing punitive levels of discipline to deter misconduct came from Mr. Hawley at the first meeting of the Task Force, citing a law review article by the late Fred Zacharias, my former colleague on the San Diego County Legal Ethics Committee.   The presentations from my organization and the Office of Chief Trial Counsel were remarkable consistent in our analysis of the relevant law, down to our mutual reliance on key Supreme Court authority, In Re Morse.   The Chief Trial Counsel and the Task Force understand that the State Bar is the administrative arm of the California Supreme Court in matters related to discipline and that the State Bar can’t re-write the jurisprudential bedrock of the discipline system on its own.

It’s a worn out cliche but the Supreme Court is the 800 pound gorilla in the room.  Except it wasn’t in the room.  The Supreme Court’s representative to Discipline Standards Task Force, the protean Beth Jay, did not attend either meeting.  Whether this reflects a lack of interest or an aversion to open meetings is unknown (the ED was kind of enough to warn the Task Force members about the open meeting laws at the first meeting.) To paraphrase my comment to the Task Force, their scope of action is entirely circumscribed by Supreme Court authority.  Unless they signal a change in direction, the State Bar cannot endorse discipline as punishment.

The Legislature of course can write statues that dictate the specific levels of discipline for specific offenses and they have.

Is this where the mysterious people who think discipline should be more punitive dwell?

That Senator Dunn is the Legislature’s man in Sacramento is plain.  But if a punitive discipline system is the agenda that the Senator is advancing, it would be a pleasant surprise he would be open about it and identify the source of his direction.

 

 

 

 

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