How Long Should a Disciplinary Finding Haunt a Lawyer?

There's an interesting discussion here on Carolyn Elefant's blog about that question. In part she writes:

On the one hand, the public has the right to learn about a lawyer's past disciplinary record. At the same time, with the advent of the Internet and powerful search engines, does continued posting of disciplinary matters after long periods of time unfairly prejudice lawyers who made past mistakes? Question: Should there be a date stamp on the amount of time that a disciplinary committee can retain decisions online and publicly accessible in search engines? What matters more -- the public's right to know or allowing lawyers who've committed ethical violations to have another chance to redeem themselves and rebuild their practice? And are these goals mutually exclusive -- in other words, is publication of an ethics violation always a death knell for a lawyer? Post your comments below.

Comments

[Mike Frisch]

My sense is that many if not most potential clients never check to see if the lawyer has prior discipline. In any event, I favor more public information about lawyers with a disciplinary record rather than less access.

[W.R. Chambers]

If there is no law or regulation permitting erasing disciplinary records, then perhaps older records could be kept in a different database, still available, but requiring the searcher to leave one database and go to another. During the process of going from one library of records to the another, the searcher would see, one hopes in an accurate and elegant way, the passage of time. Perhaps "really" old records could be available not online but in the office of the regulatory agency. And maybe there could be a printout of a lawyer's disciplinary record showing nothing for 2008, nothing for 2007, nothing for 2006, etc, etc, etc until the searcher comes to 1971 when the lawyer was reprimanded for (for example) taping a telephone call in which the caller made false accusations harmful to the lawyer's client. (But the taping of the call without the caller's consent violated state law.) In the absence of an erasure statute, I'm in favor of accurate information presented in proper context.

[David Hricik]

I agree that clients aren't likely to go look, but I wonder if insurers search, and the bar counsel seem to require reporting or disclosure sometimes. I wonder if you end up with admissibility issues, too -- in a malpractice case, can you get in prior disciplinary findings if they're "recent" and "relevant"? I dunno. Also, what about when you admit to a new jurisdiction without taking the bar?

Seems to me it may be one of those issues we don't focus on, but which may need some attention.

[David Cameron Carr]

I disagree with Mike Frisch to the extent that potential clients and clients in California do, in ever increasing numbers, do look at an attorneys State Bar listing when making a hiring decision. Opposing counsel also look at the website and many attorneys with prior public discipline have reported to me that existence of prior discipline is constantly used by opposing counsel in an effort to discredit them in court.