If you watch any legal-themed TV shows, sooner or later a lawyer will say, “I can’t do that. I would be disbarred.” That is a scriptwriters fantasy. Probably they think it’s true; almost everyone does. In the vast majority of cases, violating the Rules of Professional Conduct, the so-called “Law of Lawyering,” will not result in disbarment, or a long suspension, a short suspension, or any bar discipline at all. this is true even for serious and repeated violations.
I have been dealing with the issue for more than a year, and will soon go public, meaning public beyond Ethics Alarms, which is, as I am constantly told, an obscure, little-read, typo-prone dinosaur mostly frequented by irrelevant Boomers like myself. The lawyers are permitted by the courts to be self-regulating on the heart-warming theory that it is a profession, and thus worthy of public trust. Many years ago the legendary and wise Judge Richard Posner, the legal scholar who was until his retirement a star United States circuit judge who served on the U.S. Court of Appeals for the Seventh Circuit, observed that bar associations were unacceptably conflicted as the supposed enforcers of legal ethics standards. Like all associations, he said, their main concern is the welfare of their members, not the public. I have discovered that he was more right than I, or anyone who would admit it, ever suspected.
Maybe Judge Posner didn’t know how much of a sham the legal discipline system is. Now I do.
Bar associations are grievously under-funded and understaffed to perform the job of policing the profession with even minimal proficiency. They also don’t try very hard. The bar association websites are usually badly designed, and the pages devoted to the disciplinary system are so confusing and verbose I suspect the intention is to make filing a complaint so burdensome for members of the public that they will just give up. Lawyers have contempt for client complaints, and so do bar association officials. The public doesn’t understand legal ethics, and confuses malpractice with ethics violations. Client complaints tend to be badly written, rambling and over-long, and arrive with the presumption of incompetence. Phone calls for guidance will never reach a live person, just infuriating phone trees now made more annoying with “AI agents.” You leave a number and are promised a call back, which may never come.
Lawyer complaints, which the rules (Rule 8.3) say bar members must file when they have substantial reason to believe that another lawyer has committed acts that “call into question the lawyer’s honesty, trustworthiness or fitness to practice in other respects,” are a tiny percentage of the number of complaints reality should demand. That rule is derisively called “the Snitch Rule,” and lawyers seldom report colleagues, firm members or friends. They do report adversaries, and thus the state bars take those complaints with many grains of metaphorical salt, just as they do complaints from clients
