3.03. Justification for Attorney Discipline

In a sense it is obvious why we need a process to discipline attorneys for misconduct:  to take the bad apple attorneys off the street.  But it is a legitimate question to ask:  why do we need a disciplinary body if the admissions process kept out everyone with bad “character and fitness.”  The answer is that these two processes have different objectives. The purpose of the character and fitness requirement is really a future-looking endeavor.  The admissions committee looks at the applicant’s past and tries to evaluate whether they have character traits that will cause harm to clients or to the profession if they are given a license.  The disciplinary process, on the other hand, deals with lawyers who have made it through  character and fitness and subsequently engage in unethical conduct.

There are three main reasons given for having a disciplinary process: (1) to remove unethical lawyers from the practice.  (2)  to deter other lawyers from engaging in the same conduct.  Just as an element of the criminal justice system is deterrence, the same is true in the lawyer disciplinary process.  The deterrence can work to make a lawyer think twice before engaging in conduct because they do not want the discipline imposed.  Deterrence can also work in an educational manner.  Not every ethical rule is intuitive, and the disciplinary process allows the bar to educate all lawyers of what type of conduct will subject them to discipline.  (3)  Finally, the disciplinary process provides the public some assurance that in essence, no lawyer is above the law, that bad apple lawyers will face the consequences of their actions.