June 2007

Out, Damned Spot! Beware the Bar's Permanent Mark of Shame

by Steven A. Reisler

Let me first swear that I am not now, nor have I ever been a member of the Communist Party, or been disciplined by any bar association ... at least, not yet, and not as far as I know! I do represent other lawyers, from time to time, however, as they struggle with the ethical sequelae of certain deeds that they have done. I have learned that there is more than one good reason to tread cautiously when a bar complaint is laid at a lawyer's threshold. This article grows out of that experience through representing others.

The purpose of this essay is not to advise counsel whether to avoid transgressions — that goes without saying. Neither do I express any opinions here on the enforcement of lawyer ethics per se. Rather, I intend only to comment on one of the seemingly smaller side-effects at the tail end of the disciplinary process. My subject is ELC 3.5 and the Washington State Bar Association's practice of permanently attaching a blue warning notice and disciplinary hyperlink to a lawyer's Bar listing at the online WSBA lawyer directory.

It has long been WSBA practice to publish notice of certain lawyer discipline such as disbarment, suspension, resignation in lieu of disbarment, or transfer to inactive status. Certain public aspects of these disciplinary files have also long been available for inspection at the Bar Association offices. The practice of linking a disciplinary notice to a lawyer's online directory listing at the Bar, however, is a relatively new phenomenon facilitated by the ubiquity of the Internet. This is important because anyone — whether he is a client or opposing counsel or just someone "out to get you" — can easily research any Washington attorney via the Internet and, just as easily, determine whether he or she has been disciplined.

On its face, there is nothing wrong with that. A deeper analysis, however, raises some troubling issues.

First, the hyperlink notices apply only to lawyers who have been the subject of disciplinary action since the advent of the Internet. Lawyers whose transgressions predated the web are not currently marked by blue discipline notices and, assuming that they are still practicing, there is no electronic public notice about what they might have done in the past. This leads to a curious and disparate treatment of lawyers that depends mostly on their ages and when they did what they did. Arguably, lawyers who commit unethical acts in the 21st century are liable to be "tagged" forever. On the other hand, lawyers who may have committed the same or similar acts only a decade or so earlier could coast on the misleading implication that no blue hyperlink attaches to their official Bar web listing because they have never been disciplined.

Second, the nature of website searches — a form of research that this veteran lawyer contends is a sometimes shallow, occasionally misleading, and extremely casual method of inquiry — now makes Washington lawyer discipline accessible in seconds to billions of people worldwide. There is something fundamentally different about a paper "public record" and a hyperlinked web file that anyone with a laptop and a mouse can access and repost and redistribute in seconds. Though not yet proved, this author suspects that "web research" generally tends to be more superficial than the review of actual records. Thus, the casual mouser's research could well stop at the WSBA's hyperlink to a lawyer's discipline and never learn about either the specific details of the matter or subsequent events that might ameliorate its significance.

Third, except for admonitions, the blue "disciplinary notice" is never removed. Never. There is not even a mechanism to remove it. It is the 21st century's web-version of a scarlet letter.

The Rules for Enforcement of Lawyer Conduct, ELC 3.5(d), provide that:

The Association must publish a notice of the disbarment, suspension, resignation in lieu of disbarment, or transfer to disability inactive status of a lawyer in the Washington State Bar News and electronic or other index or site maintained by the Association for public information.

A WSBA Board of Governors policy adopted February 18, 1995, states:

That expanded discipline notices will be drafted by the Disciplinary Board Counsel. The Bar News disciplinary notices are to include reporting all public discipline actions: the attorney disciplined; bar number; admission date; location (i.e., Seattle, Olympia, etc.); the discipline imposed (i.e., reprimand, six-month suspension, etc.); effective date; the RPC(s) violated and a concise statement of the conduct (i.e., neglect, non-cooperation, etc.); a synopsis of the facts; the hearing officer, if any, disciplinary counsel, and respondent's counsel. The expanded disciplinary notices should specifically not include: identification of the grievant; names or identification of any clients. The closing sentence of the discipline notice section should provide a phone number for members to order a complete copy of any public disciplinary decision.

My informal poll of other western state bar associations found that bar associations' practices vary from jurisdiction to jurisdiction. Some states, like California, do what Washington does. Some states' bar associations are just beginning to study the issue. Other states only publish on their official websites the current status of an attorney at the time of the inquiry. Thus, a lawyer who has been suspended or disbarred will be so identified. However, unlike in Washington where the disciplinary linkage is permanent, these other states delete the disciplinary web notices once the lawyer is reinstated to the practice of law without restriction.

I understand and fully approve of the publication of the discipline notice in the first place. I do not recommend any change in that regard. The public paper files should also continue to be available at the Bar's office for review by request. I also appreciate why the WSBA never removes a discipline notice. By making a permanent, public record of the discipline previously imposed, the Bar serves the public interest and, to a lesser degree, deflects public or legislative criticism of bar associations generally that they tend to "protect" the interests of their members.

The problem, however, is whether the current practice overbalances the "public interest" against that of the attorneys in certain instances. Could there be a more evenly balanced approach that will serve both the public interest while not branding disciplined lawyers forever in all cases?

Lest anyone reading this article think "Hey, that's not my problem," you should carefully read the Rules of Professional Conduct and particularly the "catch-all" language of RPC 8.4. Let no lawyer in his hubris scoff that he always lives ethically and would never fall down. For unless we live and practice among saints, there are few people who, in the course of a lifetime, may not commit at least one of these broadly defined offenses excerpted below:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(d) engage in conduct that is prejudicial to the administration of justice;

…

(i) commit any act involving moral turpitude, or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of law, whether the same be committed in the course of his or her conduct as a lawyer, or otherwise, and whether the same constitutes felony or misdemeanor or not; and if the act constitutes a felony or misdemeanor, conviction thereof in a criminal proceeding shall not be a condition precedent to disciplinary action, nor shall acquittal or dismissal thereof preclude the commencement of a disciplinary proceeding; (emphasis added)

The title of this article, shamelessly borrowed for its dramatic effect, derives from Lady Macbeth's sleepwalking soliloquy of guilty conscience. Although her homicidal acts in Shakespeare's play might aptly stain her forever, should that be the same measure for all types of offenses contemplated by RPC 8.4?

Focusing only on high crimes and misdemeanors for the moment, we indisputably live in an age of inconsistent ethical standards and irregularly enforced codes of conduct with respect to some segments of society. Generally, however, the criminal code, as applied to ordinary people, contains both the sanction of punishment and the clemency offered by rehabilitation. The law generally recognizes that people do change, sometimes because their hormones or medical conditions become more balanced and sometimes because, through natural aging and experience, they gain insight, wisdom, and particularly empathy, that greatest of all markers of intelligent life. That is why the law frequently (and specifically in Washington state) provides for probation, parole, and, in some special instances, the opportunity to vacate and expunge a criminal conviction where genuine rehabilitation can be proved.

Thus, in Washington, a lawyer may have committed a misdemeanor (or a felony in some cases) that subjects him or her to discipline under RPC 8.4, and then, years later, have the guilty plea or conviction subsequently vacated by the courts. Although the lawyer's criminal past may be judicially expunged and however honestly the lawyer might be able to tell prospective employers that he or she has never been convicted of nor pleaded guilty to a crime, the lawyer would still have the blue badge of infamy attached to his or her Bar Association website listing forever and ever. Thus, in certain instances like these, the practice of indefinite web-branding practiced by the Bar could exceed the "criminal stigma" that underlies the original discipline. Does this overemphasize the "public interest" against the interest of attorneys in certain circumstances, or is it appropriate that even when the court has erased the cat, the Bar's Cheshire smile remains?

The current practice of the WSBA in permanently stigmatizing disciplined lawyers with a blue hyperlink on the official Bar website means that lawyers (and lawyers' lawyers) must be especially careful how they defend criminal charges against them, for a simple guilty plea to even a misdemeanor can result in a permanent career blot that, unlike the misdemeanor itself, might endure forever. Moreover, those who defend lawyers in disciplinary actions must also advise their clients and caution that among the sanctions they might agree to there is another, that of public global web-ostracism, which no future rehabilitation can ever eradicate.

I reiterate that I do not oppose the Bar Association's salutary practice of identifying on the official website those lawyers who have committed ethics violations. The question is simply whether the mark should be permanent or whether there can or should be a mechanism... a possibility... to have the mark removed in appropriate circumstances. "Consistency" cannot be the rationale for inflexibility because, as Oscar Wilde once said, "consistency is the last refuge of the unimaginative."

Edgar Allen Poe wrote his most famous poem, "The Raven," in 1845. The raven represents, among other things, guilt and memory; Pallas, the head of Athena, is the Greek goddess of wisdom, reason, and justice. As though writing apropos of current Bar practice, Poe wrote in the last stanza of his poem:

And the raven, never flitting, still is sitting, still is sitting
On the pallid bust of Pallas just above my chamber door;
And his eyes have all the seeming of a demon's that is dreaming,
And the lamp-light o'er him streaming throws his shadow on the floor;
And my soul from out that shadow that lies floating on the floor
Shall be lifted — nevermore!

In poetry and metaphysics there might be absolutes never changing. In Law, and in the society of lawyers (as with nonlawyers), however, we might want more flexibility and more options in how, and how long, we mark those who have fallen.

Steven Reisler practices civil and commercial law at his micro-mini-boutique in northeast Seattle. He is a past member of the WSBA Board of Governors, past chair of the Washington State Commission on Judicial Conduct, and edited Bar News from 1980 to 1985.