3.02. Disciplinary Agency: Structure and Process

In order to keep your license, you will most likely be required to be a member of your state bar association (32 states and D.C. require it). This is called an integrated bar as opposed to a voluntary bar association. Part of that membership requirement is the obligation to pay dues (which tend to go up the longer you practice).  The U.S. Supreme Court has upheld the right of state bar associations to require membership in a bar association.

What does the bar do with your dues? A primary function is to maintain the disciplinary structure (attorneys/investigative personnel, etc.).  The dues pay the salaries of those who investigate and prosecute ethics complaints.  However, sometimes bar associations use dues for activities other than just administering the bar and engage in conduct that the U.S. Supreme Court has described as “non-germane” to the administering the practice of law.  In these “non-germane” areas, the bar cannot force the lawyer to subsidize those activities.  To give a real-life example:  North Dakota has an integrated bar.  In 2014, there was a ballot initiative in the state that would make it a presumption in divorce cases that each parent is entitled to equal parental rights.  The North Dakota bar association opposed the initiative (a “non-germane” activity).  A North Dakota attorney – Arnold Fleck – supported the measure.  Fleck did not think it was right that the state should be able to require him to pay bar dues and then use those dues to support initiatives that he opposed.  Although the dues statement that Fleck received had a section that would allow him to “opt-out” of supporting non-germane activities, Fleck felt this process was not sufficient to protect his First Amendment right not to subsidize speech he disagrees with.

The Eighth Circuit, affirming the district court, held that the North Dakota process of allowing a lawyer to reduce their bar dues by the non-germane amount, was sufficient to protect the lawyer’s First Amendment rights.[1]  The United Supreme Court granted the Petition for Certiorari, but instead of setting the case for hearing, vacated the judgment of the Eighth Circuit and remanded the case for the circuit court to reevaluate the decision in light of Janus v. State, County, and Municipal Employees, a 2018 Supreme Court opinion that struck down (on First Amendment grounds) the ability of states to require public employees to pay union dues.[2]  Keep your eye on this case, it has the possibility of having a significant impact on the way bar associations operate.     

It is certain, however, that bar associations can do is evaluate ethical complaints filed against lawyers.  If someone believes that a lawyer has engaged in unethical conduct, they can file a complaint with the designated agency.  States vary greatly as to how those complaints are handled, but there are some general contours that we can explore.[3]  One of the most important things to know about the disciplinary process is that someone who files a complaint has no right to have the complaint proceed.  In other words, once a complaint is filed, it is in the hands of the agency, and the person filing the complaint has no say in how it is resolved.  In one case, the state bar dismissed an ethics complaint that was filed, and the complainant argued that the dismissal was inappropriate and that the members of the bar committee had a conflict of interest.  When the complainant inquired of the bar lawyer about why the complaint was dismissed, the lawyer refused to answer – citing to the secrecy of the proceedings.  The complainant brought a lawsuit alleging the complaint was not acted on because of bias.  The court dismissed the action, holding: 

Plaintiff has not alleged a cognizable legal injury in this case.  The State Bar disciplinary process is intended ‘to protect the public, the courts, and the legal profession.’ N.C. State Bar v. Rogers, 596 S.E.2d 337, 343 (N.C. Ct. App. 2004).  Under out State Bar’s disciplinary procedures, the complainant has no control over when, how, or whether the State Bar pursues his grievance.  After reporting the alleged attorney misconduct to the Bar, the complainant’s interest in the case going forward is the same as all other members of the public – to see a state agency protect the public from attorney misconduct by pursuing discipline for unethical behavior.

Boyce v. North Carolina State Bar, 814 S.E.2d 127, 134 (N.C. Ct. App. 2018)

A committee may receive a complaint, feel it has no merit and dismiss it without any additional investigation and the complainant can do nothing about it.  If, however, it is determined that the complaint has some merit, the agency then conducts an investigation – requesting information from the attorney and possibly from the person who filed the complaint.  After the information is gathered, the complaint may be dismissed or some form of discipline can be imposed.  It is also possible that the allegations of misconduct are found to be significant enough that a formal hearing is justified.  If that happens, the lawyer and a representative of the state bar will put on evidence before a tribunal.  The tribunal then has the authority to recommend:  dismissal, private reprimand, public reprimand, suspension, and disbarment.  It is just a recommendation because discipline is ultimately imposed by the Mississippi Supreme Court.  The lawyer subject to the complaint or the state bar can appeal the matter to the Mississippi Supreme Court after the tribunal makes its recommendation. 

[1] Fleck v. Wetch, 868 F.3d 652 (8^th Cir. 2017).

[2] Fleck v. Wetch, 2018 WL6272044 (2018) (granting cert and vacating judgment).

[3] If you are interested, the Rules of Discipline for the Mississippi State Bar, which sets out the procedures for attorney discipline can be found here:  https://courts.ms.gov/research/rules/msrulesofcourt/rules_of_discipline.pdf (last visited August 21, 2018).