The Purposes of Discipline

Abstract

Courts typically have characterized the purpose of professional discipline as "protecting the public." This Article will make two simple points. First, the characterization is simplistic and, as a result, masks a variety of functions that discipline might actually serve. Second, identifying the purpose of discipline more precisely would help rulemakers and disciplinary agencies achieve more consistent, and better, results.

Disciplinary agencies might adopt four possible orientations in imposing sanctions: they might focus on (1) clients and sanctions that serve client interests; (2) offending lawyers, in order to determine their qualifications to continue practicing; (3) the profession as a whole, to decide which sanctions will best encourage competence and ethical behavior throughout the bar; or (4) the disciplinary process, in an effort to shore up the impact of professional standards in guiding lawyer behavior.

Results will vary depending on the orientation that professional regulators emphasize. It is therefore important for the regulators to clarify their overall perspective. Differences in approach affect both consistency and the practical impact of discipline. Rulemakers, disciplinary prosecutors, and reviewing courts all need to be able to consult principles of discipline in order to effectively carry out their functions.

Part I of this Article distinguishes the theory of professional discipline of lawyers from the theories underlying criminal prosecutions. Part II identifies the various possible stratagems for approaching discipline. Part III analyzes their potential impact by discussing their application to generic types of misconduct. Part IV discusses the ramifications of this analysis for rulemakers and other regulators.

Keywords: professional responsibility, legal ethics, lawyer discipline, professional discipline

JEL Classification: K19, K4