Mark Dubois
Mark Dubois ()

One of the possible unintended consequences of the new mandatory CLE rule is a loss of one of the most-used diversionary programs for first-time offenders with less than “reprimand-worthy” conduct. This may result in a ratcheting-up of the potential consequences of being the subject of a grievance. More work for me and my colleagues, but probably not the best thing for the bar or the lawyer discipline system.

The way our lawyer discipline system works is that the filing of a grievance is a “non-public event.” That means records of the case are available to judges and disciplinary lawyers in the system, but not the public. Only when probable cause is found does the matter become public. That change was made several decades ago in reaction to lawyers’ complaints that unhappy clients could sully their reputations with unfounded complaints that would appear on their public records regardless of their frivolous nature.

There are some clients who are never happy. Other people file complaints that have nothing to do with a lawyer’s practice. I remember one case where a complaint alleged that the lawyer did not put someone’s kid on a travel soccer team. Another alleged that the lawyer was having sex with a horse. These cases were dismissed, and no one can get information about them. That’s a good thing.

The next level of publicity happens when probable cause is found. Once that happens, the case becomes “public” but not “publicized”, meaning that it does not appear on the Judicial Branch website next to the offending lawyer’s name. That’s also fair because there’s a big difference between probable cause and clear and convincing evidence. It would be unfair to sully a lawyer’s reputation with publicizing a case that ultimately was found to lack merit after a full hearing. Trials, with cross-examination, separate the wheat from the chaff quickly.

Once discipline is imposed, the matter gets publicized by appearing on the lawyer’s online profile maintained by the Branch. One plea-bargaining tool we used in the system was that a case could be dismissed after probable cause with an agreement that the lawyer attend some agreed-upon number of hours of CLE. Thus there would be a “public” record, but not one that was easily found unless the inquirer asked bar counsel about the lawyer’s record.

For slightly more serious cases, the Grievance Committee would impose a CLE requirement “as discipline.” This would be publicized, but is less of a sanction than a reprimand; again, a step in a nuanced system.

Now that we all have to take 12 hours of CLE anyway, my understanding is that disciplinary counsel are no longer interested in imposing any CLE as part of a plea-bargain. For all practical purposes, that means the choices are to dismiss the case or impose a reprimand. (There are some other orders like mental health counseling or audits that can be imposed, but they are rarely used. For all intents and purposes, the only choices now are asking that either disciplinary counsel recommend a dismissal, or trying the case.)

Many states have an intermediate step—not unlike our old “dismissal with CLE”—in the nature of a private admonishment. Like the old disposition, it is available to judges and ethics prosecutors in cases of recidivism, but it is not public. Other states allow public admonishments to be stripped from a lawyer’s record after a period of good conduct.

These rules reflect the reality that the practice of law can be tricky, and that none of us are perfect, or perfect every day in every way. Having an option to divert a first-time offender from a lifetime of a bad disciplinary record is only fair, similar to accelerated rehabilitation or stripping points off a driver’s license after a few years.

If the only choices now are to seek a dismissal or try the case on the merits, my bet is that many, many more cases are going to get tried. The Grievance Committee has always been hostile to dismissal recommendations, and the rule that allows disciplinary counsel to recommend this disposition does not give them the same discretion that a state’s attorney has when entering a nolle prosequi. As one defense lawyer pointed out to me the other day: what’s the risk of trying the case when the only downside is the same discipline that’s already on the table?

The Disciplinary Counsel’s Office presently has only four lawyers. When it was designed nearly 15 years ago, the estimate was that at least six lawyers would be needed. That was before the random audit and other rules were created, which added to their responsibilities. Already their efforts at policing unauthorized practice are lagging simply because of resources. If they are going to have to try more grievance cases, the system will slow to a crawl.

The MCLE rule is a good one. But the process of lawyer discipline needs some nuanced intermediate steps between dismissals and full reprimands now that imposing CLE (either privately or as a public discipline) is not a practical alternative. Private admonishment is one solution—one that should be strongly considered.