Ethics

 [Post by Mitchell Simon]

A number of states have begun posting lawyer discipline decisions on

their regulatory board?s websites.New Hampshire has just taken that

step.

While allowing greater access to these decisions should help the public

better understand the process and enhance the consumer protection

function of the disciplinary system, there are likely to be a number of

unintended consequences as these system are rolled out. For example, in

New Hampshire a search of disciplined lawyers will also pull up letters

of warnings. Such letters are issued in cases where a lawyer has been

found not to have violated a disciplinary rule, but where ?attorney

acted in a manner which involved behavior requiring attention.? New

Hampshire Supreme Court Rule 37(2)(k). Such conduct ranges from simple

mistakes in retainer letters to what the disciplinary staff describe as

?all but a violations.?

The website has also, for most practical purposes, eliminated the

distinction between public censure and a reprimand. Though both are

currently open to public inspection, in the past only a public censure

was published in the newspapers and thus widely available. This

distinction was often very important in settlement negotiations and

relied upon by lawyers in deciding how to respond to disciplinary

charges. Since the main source of information for the public now is

likely to be the website, there will be virtually no difference between

these levels of discipline.

I wonder how other states are addressing these issues and how other

readers balance the benefit of a transparent lawyer discipline systems

with the potential unfairness to lawyers who negotiated sanctions or

accepted a warning during the pre-website period.