How does disbarment work, and what impact does it have on someone who practices law?

Michael W. Flynn
June 7, 2008

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.

Today’s topics is one that I hope not to learn about from the inside: disbarment.

I read today a story about Jack Thompson and the Florida Bar's proceedings involving him.One of the articles mentions disbarment as a possibility, but doesn't talk about what that actually means. How does disbarment work, and what impact does it have on someone who practices law?

The very short answer is that disbarment is bad for lawyer, but good for the public.

Disbarment is a severe sanction against an attorney that results in the attorney losing the ability to practice law in a jurisdiction or to appear before a specific court.

To practice law in a state, an attorney must be admitted to practice by the bar of that state. The bar is sometimes an administrative arm of the highest court of the state, and is charged with ensuring that the people licensed to practice law are sufficiently competent and ethical to carry out the interests of justice. To become a member of the bar, a person must usually go to law school, pass an ethics test, pass the bar exam, pass a moral character test, and take an oath swearing to uphold the constitutions of that state and the United States. Attorney admissions are public record, and the state bar keeps records of all the people licensed to practice including where they went to law school, when they were admitted to practice, and contact information.

One of the bar’s duties is to ensure that the members that it has admitted remain eligible to practice law throughout their careers. Part of this duty is to act on complaints made by members of the public and the courts. If an attorney does something wrong, then any member of the public can file a grievance against him with the state bar, and the state bar will investigate. An attorney can do a great number of things wrong to get himself into trouble including failing to represent a client competently, improperly handling client funds, acting in any fraudulent manner, or having improper relationships (sexually or otherwise) with a client or another member of the public. A court also has sanction power against the attorneys who practice before it such that the court can make an attorney pay money to the court or the opposing side for acting in a manner proscribed by law. If the sanction is high enough, then the state bar is notified.

The point is, there are several avenues for complaining against an attorney who screws up. Once the complaint is lodged, then the state bar takes action to investigate. Depending on the severity of the complaint, and the evidence to support the allegations in the complaint, the state bar can call an attorney into a disciplinary proceeding. The disciplinary proceeding is a bit like a criminal case in that only the government can bring disciplinary proceedings against an attorney. A member of the public can report bad conduct, but does not have the power to actually prosecute an attorney. Once disciplinary proceedings are brought, the attorney can bring forth evidence to show that what he did was not bad, and that he should not be punished. After a hearing or a trial, the state bar judge will determine whether the attorney violated any of his ethical duties to the court or the client, and render a sanction against him.

The sanction for a small infraction can be small: perhaps a year of probation and mandatory ethics classes. This might be an appropriate sanction for an attorney who, for the first time, unintentionally commingles client funds, but cooperates with the state bar to correct the problem. However, if the attorney has engaged in intentionally dishonest behavior over the course of time, or willfully fails to cooperate with the state bar, then the punishment will be worse. Some attorneys are suspended for a short time. The ultimate sanction is disbarment: the court decides that the attorney is no longer fit to practice in the jurisdiction, and takes away the attorney’s ability to practice law.

Most states will automatically disbar an attorney for being convicted of a felony.

In the news article about Jack Thompson, he committed a long and dedicated course of breaking court rules, including making frivolous filings, ignoring court orders, embarrassing the court, and others. He sounds like quite the interesting character.

But, disbarment serves a public purpose – it removes people from the practice of law who have demonstrated that they should not be doing so. Any member of the public can visit a state bar website to look up an attorney to find out what disciplinary proceedings have been lodged against him. This allows the public to make a more informed choice about whom to hire.

I certainly hope that I never have to deal with this process!

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