Legal Ethics

Inequalities In Lawyer Discipline Demand Action

Bar discipline skews toward minority lawyers; it's time to fix that.

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The State Bar of California disciplinary system deserves scrutiny: does it drop the hammer on more small-firm lawyers and solos than larger-firm lawyers? Does it drop the hammer on minority lawyers more than majority lawyers? The answer to both questions is yes, and I am not the only one who thinks that. It’s all well and good for the State Bar to encourage people to become lawyers, but drop-kicking them once they passed the bar is not so helpful as discipline can range from private reproval to disbarment.

One of the things (among many) that has griped attorneys here in California (and I would guess elsewhere as well) is the apparent predilection of the disciplinary system to go after solo and small practitioners, leaving attorneys in Biglaw and other large firms to go scot-free when they violate the State Bar Act or the Rules of Professional Conduct. Solos and small firm lawyers are pretty much left to their own devices once in the grip of the disciplinary system. There is the sense that discipline falls unfairly on these lawyers, who may also be members of minority groups. That perception and the reality both must change if equality is to be more than just words.

In the effort to show that the State Bar really cares about racial equality, that it is more than just words and gold stars on a report card, identification of “disproportionate discipline” has prompted the Board of Trustees to direct “staff to develop, implement, and evaluate several reforms that address findings related to the disproportionate discipline imposed in particular on Black male attorneys.”

After a case has wended its way through the trial and reviewing bodies of the State Bar Court, the California Supreme Court has the final say on discipline matters. Now pending is the Harper on Discipline case, in which the Court has granted Harper’s petition for review of the discipline imposed. The discipline arose out of a reported event of an overdraft on Harper’s client trust account.

The Court has remanded the case to the State Bar Hearing Department for “further evidentiary hearings to determine whether the State Bar’s facially neutral disciplinary practices at issue, including but not limited to the weight given to petitioner’s previous discipline for reportable bank matters, had the effect of discriminating against Harper on the basis of race.”

Further, the Court’s order requires that the “State Bar must determine whether Harper was disciplined more harshly than any other similarly situated white male attorney.” Harper will be allowed to obtain all of the data in two recent studies that the State Bar commissioned.

One is the Farkas study, conducted by Professor George Farkas of the University of California, Irvine, which looked at racial disparities in attorney discipline. The Farkas study found significant differences between discipline rates of Black male and white male attorneys. The study also showed the sole practitioners are more likely to be disciplined than attorneys in larger firms. I am not surprised by that; are you?

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After the State Bar trustees reviewed the Farkas report, they commissioned Professor Christopher Robertson of Boston University to evaluate the Farkas report and make recommendations, which he did. Among the recommendations: archive five years of prior complaints. Given the disproportionate number of complaints filed against Black male attorneys, the issue becomes whether “priors” affect decisions on whether to file charges. Another recommendation: creation of a support system to help attorneys at higher risk of future complaints. That system could include both intervention and outreach programs. No attorney welcomes an encounter with the disciplinary system.

The State Bar has created an Ad Hoc Commission on Lawyer Discipline. The Commission, whose members were recently announced, is composed of a variety of lawyers in different practices and representing diverse groups. It will be responsible for reviewing changes already made in the discipline system and suggesting further changes, if necessary, for public protection.

However, the State Bar has reopened the application process for selecting members of the Commission to “seek representation on the commission of groups found to be most disproportionately impacted by the discipline system.” As stated on the State Bar’s website, “the goal of the commission will be to broadly examine the attorney discipline and work to create a fairer, more effective system for attorneys and the public alike.” I was not surprised by the application reopening because when I looked at the current members appointed to the Commission, I thought minority representation was insufficient.

Right now, there are two events running on parallel tracks: the Ad Hoc Commission on Lawyer Discipline and the remand to the State Bar Court to hold evidentiary hearings on whether Harper’s discipline was race-based discrimination.

Given the time that agencies can take on these issues, it’s anyone’s guess as to when either or both will be completed, what the results will show, what steps, if any, the State Bar will take in response, and what the Supreme Court will decide about Harper’s discipline.

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Meanwhile, several public interest law firms have filed a lawsuit against the Los Angeles Superior Court for issues arising out of the pandemic and how the Court is managing them or not. Two court interpreters in the Stanley Mosk courthouse in downtown Los Angeles have died of COVID-19. The court is not requiring temperature checks to enter courthouses, not monitoring how many people can enter an elevator at the same time, not ensuring the masking requirement, but it is continuing with evictions and traffic matters.

To be fair, there’s no playbook for how to manage courts during a pandemic, but there will be many post-mortems about what courts should have and could have done differently. I hope there will be lessons learned during this time of limited, or no, access to justice.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

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