Private Sanctions, Public Harm?

The legal profession has a secret. In response to widespread public distrust in the profession’s ability to regulate itself, disciplinary authorities have undertaken modest efforts over the last several decades to make their activities more transparent. They have opened up their formal proceedings, publicized the identities of sanctioned attorneys, and shared information about their work online. But at the same time, most have quietly continued to resolve cases of ostensibly “minor” and “isolated” misconduct through private sanctions, keeping the identities of disciplined attorneys – and their misconduct – hidden from view.

This Article takes a comprehensive look at private sanctions to determine whether their continued use can be justified. It presents the results of an original empirical study on disciplinary systems throughout the country over the past twenty years, including five states that have revealed some details of their private sanctions. These data show that private sanctions are at times being imposed for misconduct that is anything but “minor” and on attorneys whose conduct is anything but “isolated.” Moreover, there is no persuasive evidence that private sanctions are having their intended deterrent effect or adequately protecting the public from the risk of future harm. Unless jurisdictions commit to greater transparency and can demonstrate that their private sanctions are being appropriately administered and are effective, they should not be able to continue disciplining attorneys behind closed doors.