Exploring Lawyer Misconduct: An Examination of the Self-Regulation Process

ABSTRACT

Although white-collar professionals are often held in high esteem, sometimes persons in privileged positions engage in misconduct. Unfortunately, very little is known about the correlates associated with professional misconduct and even less is known about the sanctioning process among lawyers who are licensed by state bar associations and therefore subject to the bar rules regulating their professional conduct. We examine 213 complaints filed in one fiscal year with the Florida Bar, alleging attorney misconduct and evaluate the factors that influence whether the complaint continued through, or was discarded at, each stage of the self-regulated grievance process. Using selection models that examine both the staff’s decision to send a case forward to the grievance committee as well as the grievance committee’s recommendation about sanctioning the lawyer, results show that both legal and extra-legal variables are related to these two processes.

Notes

¹ It is also the case that the motivation for professional organizations to self-regulate is not simply to avoid criminal justice jurisdiction. State bar associations likely aspire to have their members have high moral standards and to act in an ethical manner.

² The ABA Survey on Lawyer Discipline Systems (S.O.L.D.) (American Bar Association 2013).

³ Several states in the United States also give private sanctions, but they are not included in this figure. It is also possible that more than one complaint is filed against the same attorney, which would increase the percent if the data were available.

⁴ Nineteen percent of the practicing lawyers in Illinois in 2001 were solo practitioners. Sixty-seven percent of all attorneys sanctioned in Illinois between 1998 and 2002 were solo practitioners (2003 Annual Report of the Attorney Registration and Disciplinary Commission (Illinois)).

⁵ In Canada, the Law Society is akin to state bar associations in the United States.

⁶ It has historically been the case that in Florida, the more experienced attorneys are disproportionately men. This is borne out in our data as well, where males have, on average, four years of experience compared to three years for women (t = 2.931, p < .05).

⁷ Curtis and Kaufmann used Florida census data from the year 2000 and examined cases between 1988 and 2002.

⁸ The grievance committee makes a recommendation to the Florida Supreme Court to sanction. The Court ultimately decides on the sanction and does not always agree with the committee’s recommendation. The grievance committee does, however, make decisions. For example, they can decide that there is no probable cause or that the case would be a good one for diversion but ultimately the suggestion of a sanction is only a recommendation.

⁹ This is an important issue and noted limitation of our work, as well as the other empirical studies that have examined lawyer misconduct. The problem across all these studies concerns the lack of data contained in Bar disciplinary records when they are available and open to public and researcher request. In the Discussion section, we highlight this issue and also identify additional variables that we believe are important to include in subsequent Bar-related data collections.

¹⁰ Levin et al. (2013:9) report that “women are more likely to work in solo practice than men and should thus be more susceptible to grievances and disciplines.” In the case files, females were only slightly but not significantly more likely to work as a solo practitioner (60% vs. 53.13%).

¹¹ We did not include the legal professional complainant variable in this model because in the Heckman selection model that follows one variable has to be used in the selection (staff decision) model but not in the outcome (grievance committee recommendation) model. This approach, then, preserves that the same analytic set-up and results are provided across the two modeling approaches. As discussed earlier, there is no significant association between the grievance committee’s recommendation to sanction the lawyer and whether the complaint was substantiated. Moreover, even when the logistic regression model predicting the grievance committee’s recommendation to sanction is estimated with legal professional complainant in the model, it fails to have a significant effect nor does its inclusion alter any of the other coefficient estimates.

¹² Note that in the first two separate logistic regression equations, we present Odds Ratios, where values greater than 1 indicate an increased risk of experiencing the outcome while values less than 1 indicate a lessened risk of experiencing the outcome. In the Heckman selection model results shown in Table 3, we report traditional probit coefficients, in which a positive sign indicates a positive relationship between that variable and the outcome while a negative sign indicates an inverse relationship between that variable and the outcome.

¹³ Solo practitioners tend to have less power and resources that help them defend themselves and are also more often than not “at the bottom of the status ladder” and may face more pressure to violate the rules (Carlin 1966:168; see also Handler 1967:116).

Additional information

Notes on contributors

Nicole Leeper Piquero

NICOLE LEEPER PIQUERO is a Professor of Criminology and Associate Provost at the University of Texas at Dallas. Her research includes the study of white-collar and corporate crimes, criminological theory, as well as gender and crime. She earned her Ph.D. in Criminology and Criminal Justice from the University of Maryland, where she also earned her master’s and bachelor’s degree.

Michele Bisaccia Meitl

MICHELE BISACCIA MEITL is currently working on her Ph.D. in Criminology at the University of Texas at Dallas. She received a Bachelor of Arts in 2002 from the University of California at Santa Barbara and a Juris Doctorate from the Columbus School of Law at Catholic University in 2005.

Eve M. Brank

EVE M. BRANK is Associate Professor in the Department of Psychology at the University of Nebraska–Lincoln. She received her J.D. (2000) and Ph.D. (2001) from the University of Nebraska–Lincoln in the Law-Psychology Program. Her research primarily focuses on the way the law intervenes (and sometimes interferes) in family and personal decision making. Some areas in which she has studied such decision making include: parental responsibility laws, juvenile delinquency, elder caregiving, expectations of privacy, consents to government searches, and plea negotiations.

Jennifer L. Woolard

JENNIFER L. WOOLARD is an Associate Professor of psychology and Co-Director of the graduate program in Human Development and Public Policy at Georgetown University. She obtained her Ph.D. in developmental and community psychology from the University of Virginia. Her research focuses on adolescents and families in legal contexts, including police interrogation, culpability, the attorney–client relationship, and the role of parents in adolescents’ legal decision making. She has been the principal investigator on several studies involving juvenile correction and court populations, including interviews with juveniles about their experiences in detention facilities, their knowledge of constitutional rights, and their competence to stand trial. She also works with local nonprofit agencies to study community change and youth violence prevention. Dr. Woolard has published on the prevention of child abuse and neglect, policy regarding female delinquency, and mental health needs of juvenile delinquents. Her research collaborations include membership on the John D. and Catherine T. MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice. She has worked with many federal, state, and local agencies, and has presented her research findings to a wide variety of academic, legal, and policy audiences Dr. Woolard has won several awards for undergraduate teaching excellence.

Lonn Lanza-Kaduce

LONN LANZA-KADUCE is Professor of Criminology and Law in the Department of Sociology and Criminology & Law at the University of Florida. He received his PhD and JD from the University of Iowa. His research interests include criminological theory, drug and alcohol behavior, and sociology of law.

Alex R. Piquero

ALEX R. PIQUERO is Ashbel Smith Professor of Criminology and Associate Dean for Graduate Programs in the School of Economic, Political, and Policy Sciences at The University of Texas at Dallas and Adjunct Professor Key Centre for Ethics, Law, Justice, and Governance at Griffith University. His research interests include criminal careers, criminological theory, and quantitative research methods. He has received several research, teaching, and service awards and is Fellow of both the American Society of Criminology and the Academy of Criminal Justice Sciences. In 2014, he received the University of Texas System Regents’ Outstanding Teaching Award.