A couple of days ago, I posted a note about a few new cases involving lawyers who prepared wills for clients in which the lawyers named themselves or their wives as beneficiaries. Using one of these cases as the basis for his argument, Mike Frisch of the the Legal Profession blog has posted some thoughts on lawyers' discipline here.
He starts by arguing that "[i]f ever there is a case to be made for non-public discipline," one of those three cases is it because it involved an aging practitioner who probably just made a good faith mistake. He had checked case law that was later trumped by changes in the governing rule, he acted in a manner that negates any hint of an improper intent and, in the end, the "inheritance" was an end table and some tools. From there he goes on to discuss the other possible end of the spectrum when it comes to discipline: a "zero tolerance" policy for ethics violations. He thinks that such a system would not only be a bad idea, it would never work.
Should a bar prosecutor be able to exercise discretion and spare a senior lawyer in the process of winding down a 60 + year practice of the shame of a public sanction?
I do not think so. I don't think there is a good case to be made for private discipline. I think all discipline, to be fully effective, should be public. I think that the better approach is to continue to allow the authorities to decide the appropriate sanctions to be imposed on a case by case basis. That way, the attorney who makes a relatively minor mistake would receive a minor sanction. Yet, if the sanction is public, the attorney - and others - would learn from that mistake and be more inclined not to engage in similar conduct in the future.