Professional responsibility |
---|
Duties to the client |
|
Duties to the court |
|
Duties to the profession |
|
Sources of law |
Penalties for misconduct |
Disbarment, also known as striking off, is the removal of a lawyer from a bar association or the practice of law, thus revoking their law license or admission to practice law. Disbarment is usually a punishment for unethical or criminal conduct but may also be imposed for incompetence or incapacity. Procedures vary depending on the law society; temporary disbarment may be called suspension.
In Australia, states regulate the Legal Profession under state law despite many participating in a uniform scheme. Admission as a lawyer is the business of the admissions board and the Supreme Court. Disciplinary proceedings may be commenced by the Bar Association, the Law Society of which one is a member, or the board itself.
In Germany, a Berufsverbot is a ban on practicing a profession, which the government can issue to a lawyer for misconduct, Volksverhetzung or for serious mismanagement of personal finances.
In April 1933, the Nazi government issued a Berufsverbot forbidding the practice of law by Jews, Communists, and other political opponents, except for those protected by the Frontkämpferprivileg .
In the United Kingdom, the removal of the licence to practise of a barrister or Scottish advocate is called being "disbarred", whilst the removal of a solicitor from the rolls in England and Wales, Scotland, or Northern Ireland is called being "struck off". [1] [2]
Generally, disbarment is imposed as a sanction for conduct indicating that an attorney is not fit to practice law, willfully disregarding a client's interests, commingling funds, or engaging in fraud that impedes the administration of justice. In some states, any lawyer who is convicted of a felony is automatically suspended pending further disciplinary proceedings, or, in New York, automatically disbarred. [3] Automatic disbarment, although opposed by the American Bar Association, has been described as a convicted felon's just deserts. [4]
In the United States legal system, disbarment is specific to regions; one can be disbarred from some courts while still being a member of the bar in another jurisdiction. However, under the American Bar Association's Model Rules of Professional Conduct, which have been adopted in most states, disbarment in one state or court is grounds for disbarment in a jurisdiction which has adopted the Model Rules.
Disbarment is quite rare: in 2011, only 1,046 lawyers were disbarred. [5] Instead, lawyers are usually sanctioned by their clients through civil malpractice proceedings, or via fine, censure, suspension, or other punishments from the disciplinary boards. To be disbarred is considered a great embarrassment and shame, even if one no longer wishes to continue a career in law.
Because disbarment rules vary by area, different rules can apply depending on where a lawyer is disbarred. Notably, most US states have no procedure for permanently disbarring a person. Depending on the jurisdiction, a lawyer may reapply to the bar immediately, after five to seven years, or be banned for life. [6]
In the 20th and 21st centuries, one former U.S. president and one former U.S. vice president have been disbarred, and another former president has been suspended from one bar and forced to resign from another bar rather than face disbarment.
Former vice president Spiro Agnew, having pleaded no contest (which subjects a person to the same criminal penalties as a guilty plea but is not an admission of guilt for a civil suit) to charges of bribery and tax evasion, was disbarred from Maryland, the state of which he had previously been governor.
Former president Richard Nixon was disbarred from New York in 1976 [7] [8] for obstruction of justice related to the Watergate scandal. He had attempted to resign from the New York bar, as he had done with California and the Supreme Court, but his resignation was not accepted as he would not acknowledge that he was unable to defend himself from the charges brought against him. [9]
In 2001, following a 5-year suspension by the Arkansas bar, the United States Supreme Court suspended Bill Clinton, providing 40 days for him to contest disbarment. [10] [11] He resigned before the end of the 40 days, thus avoiding disbarment. [12]
Alger Hiss was disbarred for a felony conviction but later became the first person reinstated to the bar in Massachusetts after disbarment. [13]
In 2007, Mike Nifong, the District Attorney of Durham County, North Carolina who presided over the 2006 Duke University lacrosse case, was disbarred for prosecutorial misconduct related to his handling of the case. [14]
In April 2012, a three-member panel appointed by the Arizona Supreme Court voted unanimously to disbar Andrew Thomas, former County Attorney of Maricopa County, Arizona, and a former close confederate of Maricopa County Sheriff Joe Arpaio. According to the panel, Thomas "outrageously exploited power, flagrantly fostered fear, and disgracefully misused the law" while serving as Maricopa County Attorney. The panel found "clear and convincing evidence" that Thomas brought unfounded and malicious criminal and civil charges against political opponents, including four state judges and the state attorney general. [15] "Were this a criminal case," the panel concluded, "we are confident that the evidence would establish this conspiracy beyond a reasonable doubt." [16]
Jack Thompson, the Florida lawyer noted for his activism against Howard Stern, video games, and rap music, was permanently disbarred for various charges of misconduct. The action resulted from several grievances claiming that Thompson had made defamatory, false statements and attempted to humiliate, embarrass, harass, or intimidate his opponents. The order was made on September 25, 2008, effective October 25. However, Thompson tried to appeal to the higher courts to avoid the penalty taking effect. [17] Neither the US District Court nor the US Supreme Court [18] would hear his appeal, rendering the judgment of the Florida Supreme Court final.
Ed Fagan, a New York lawyer who prominently represented Holocaust victims against Swiss banks, was disbarred in New York (in 2008) [19] and New Jersey (in 2009) for failing to pay court fines and fees; and for misappropriating client and escrow trust funds. [20] [21]
F. Lee Bailey, noted criminal defense attorney, was disbarred by Florida in 2001, with reciprocal disbarment in Massachusetts in 2002. The Florida disbarment resulted from his stock handling in the DuBoc marijuana case. Bailey was found guilty of 7 counts of attorney misconduct by the Florida Supreme Court. Bailey had transferred a large portion of DuBoc's assets into his own accounts, using the interest gained on those assets to pay for personal expenses. In March 2005, Bailey filed to regain his law license in Massachusetts. The book Florida Pulp Nonfiction details the peculiar facts of the DuBoc case and extended interviews with Bailey, including his own defense. [22] Bailey is also best known for representing murder suspect O. J. Simpson in 1994.
Richard P. Liebowitz, a New York attorney focused on copyrights held by photographers, was disbarred by the state of New York in 2024 following suspension from the practice of law in the Southern District of New York. His disbarment followed what was described as a "pattern and practice of failing to comply with court orders and making false statements to the court" and multiple lawsuits wherein Liebowitz was sanctioned for misconduct. [23]
Rudy Giuliani was disbarred in New York for allegations about mass voter fraud and his participation in the January 6, 2021, attack on the United States Capitol to subvert the 2020 Presidential Election. [24] [25]
In its most general sense, the practice of law involves giving legal advice to clients, drafting legal documents for clients, and representing clients in legal negotiations and court proceedings such as lawsuits, and is applied to the professional services of a lawyer or attorney at law, barrister, solicitor, or civil law notary. However, there is a substantial amount of overlap between the practice of law and various other professions where clients are represented by agents. These professions include real estate, banking, accounting, and insurance. Moreover, a growing number of legal document assistants (LDAs) are offering services which have traditionally been offered only by lawyers and their employee paralegals. Many documents may now be created by computer-assisted drafting libraries, where the clients are asked a series of questions that are posed by the software in order to construct the legal documents. In addition, regulatory consulting firms also provide advisory services on regulatory compliance that were traditionally provided exclusively by law firms.
The Appellate Division of the Supreme Court of the State of New York is the intermediate appellate court in New York State. The state is geographically divided into four judicial departments of the Appellate Division. The full title of each is, using the "Fourth Department" as an example, the "Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department".
Admission to the bar in the United States is the granting of permission by a particular court system to a lawyer to practice law in the jurisdiction. Each U.S. state and jurisdiction has its own court system and sets its own rules and standards for bar admission. In most cases, a person is admitted or called to the bar of the highest court in the jurisdiction and is thereby authorized to practice law in the jurisdiction. Federal courts, although often overlapping in admission standards with states, set their own requirements.
Francis Lee Bailey Jr., better known to the general public as F. Lee Bailey, was an American criminal defense attorney. Bailey's name first came to nationwide attention for his involvement in the second murder trial of Sam Sheppard, a surgeon accused of murdering his wife. He later served as the attorney in a number of other high-profile cases, such as Albert DeSalvo, a suspect in the "Boston Strangler" murders, heiress Patty Hearst's trial for bank robberies committed during her involvement with the Symbionese Liberation Army, and U.S. Army Captain Ernest Medina for the My Lai Massacre. He was a member of the "Dream Team" in the trial of former football player O. J. Simpson, who was accused of murdering Nicole Brown Simpson and Ron Goldman. He is considered one of the greatest lawyers of the 20th century.
The State Bar of California is an administrative division of the Supreme Court of California which licenses attorneys and regulates the practice of law in California. It is responsible for managing the admission of lawyers to the practice of law, investigating complaints of professional misconduct, prescribing appropriate discipline, accepting attorney-member fees, and financially distributing sums paid through attorney trust accounts to fund nonprofit legal entities. It is directly responsible to the Supreme Court of California. Its trustees are appointed by the Supreme Court, the California Legislature, and Governor of California. All attorney admissions are issued as recommendations of the State Bar, which are then routinely ratified by the Supreme Court. Attorney discipline is handled by the State Bar Office of Chief Trial Counsel, which acts as prosecutor before the State Bar Court of California. The State Bar has been cited for its corrupt practices during the 21st century, and is subject to reforms issued by its governing body, the California Supreme Court.
Philip Timothy Howard is a Florida attorney who was disbarred by the Florida Supreme Court by Order issued March 24, 2022, accepting the Referee’s Report that found Howard had committed nine of the ten violations of the Code of Professional Responsibility charged against Howard by The Florida Bar. His private law practice, Howard & Associates, P.A., was permanently closed by order of the Florida Supreme Court in its March 24, 2022, order of disbarment.
The Texas Court of Criminal Appeals (CCA) is the court of last resort for all criminal matters in Texas. The Court, which is based in the Supreme Court Building in Downtown Austin, is composed of a presiding judge and eight judges.
Michael Byron Nifong is an American former attorney and convicted criminal. He served as the Durham County District Attorney until he was removed, disbarred, and very briefly jailed following court findings concerning his conduct in the Duke lacrosse case, primarily his conspiring with the DNA lab director to withhold exculpatory DNA evidence that could have acquitted the defendants.
The State Bar of Arizona is the integrated (mandatory) bar association of the U.S. state of Arizona. The Arizona Supreme Court licenses lawyers, while the State Bar administers the regulation of the practice of law. The State Bar, under the direction of the Court, establishes procedures for the discipline of lawyer misconduct and provides education and development programs for the legal profession and the public. Through the Rules of The Supreme Court of Arizona, the privilege to practice law in Arizona is granted solely to "active member[s] of the state bar."
Andrew Peyton Thomas is an American politician, author and former attorney. He was the county attorney for Maricopa County in Arizona from 2004 until April 6, 2010. During his term in office, he was known for his anti-illegal immigrant policies. On April 10, 2012, Thomas was disbarred by a disciplinary panel of the Arizona State Supreme Court for his actions as county attorney.
Martin Garbus is an American attorney. He has argued cases throughout the country involving first amendment, constitutional, criminal, copyright, and intellectual property law. He has appeared before the United States Supreme Court, as well as trial and appellate courts throughout the United States in leading First Amendment cases. His cases have established precedents there and in other courts throughout the country. He has argued and written briefs that have been submitted to the United States Supreme Court; a number of which have resulted in changes in the law on a nationwide basis, including one described by Justice William J. Brennan as "probably the most important due process case in the Twentieth Century". An international observer in foreign elections, he was selected by President Jimmy Carter to observe and report on the elections in Venezuela and Nicaragua. Garbus also participated in drafting several constitutions and foreign laws, including the Czechoslovak constitution. He also has been involved in prisoner exchange negotiations between governments. He is the author of six books and over 30 articles in The New York Times, The Washington Post and the Los Angeles Times. Shouting Fire is a documentary film about his life and career. He received the Fulbright Award for his work on International Human Rights in 2010. In 2014, University College Dublin's Literary and Historical Society honored Garbus with the James Joyce Award for Excellence in Law. The same year Trinity College awarded him for his human rights and free speech work. He has represented dissidents in amongst other places such as China, Russia, Czechoslovakia, India, India, South Africa, and Taiwan.
John Charles Eastman is an American lawyer and academic. Due to his efforts to overturn the 2020 United States presidential election, attempting to keep then-president Donald Trump in office and obstruct the certification of Joe Biden's victory, he has been criminally indicted, ordered inactive by the State Bar of California, and recommended for disbarment. Eastman has lost eligibility to practice law in California state courts, pending his appeal of the state bar judge's ruling that recommended him for disbarment. Eastman is also named as a co-conspirator in the federal indictment brought against Trump over his attempts to subvert the 2020 election results and prevent the certification of Biden's election.
Stephen Yagman is an American federal civil rights lawyer, who also handles criminal defense and habeas corpus matters. He has a reputation for being an exceptionally zealous advocate in cases regarding allegations of police brutality. He has argued hundreds of federal civil rights cases before a jury, and has been involved in over a hundred and fifty federal appeals and certiorari petitions before the United States Supreme Court.
Brendan V. Sullivan Jr. is an American lawyer who is currently a senior partner in the law firm Williams & Connolly. Sullivan is a white-collar criminal defense attorney best known for his defense of U.S. Marine Lieutenant Colonel Oliver North in the wake of the Iran-Contra scandal in the late 1980s. He is known for his combative style and several prosecutors have been fired, disbarred, or jailed for prosecutorial misconduct Sullivan had uncovered.
The Oregon State Bar (OSB) is a public corporation and instrumentality of the Oregon Judicial Department in the U.S. state of Oregon. Founded in 1890 as the private Oregon Bar Association, it became a public entity in 1935 that regulates the legal profession. The public corporation is part of the Oregon Judicial Department.
Paul Mpande Ngobeni is a South African lawyer who graduated from Hamilton College, New York. He has served on a task team advising the African National Congress on constitutional law matters where he assisted in designing its legal strategy for defending South African President Jacob Zuma against corruption charges. He has also served as a consultant for the South African Ministry of Housing on various legal matters, including transformation.
The Judiciary of California or the Judicial Branch of California is defined under the California Constitution as holding the judicial power of the state of California which is vested in the Supreme Court, the Courts of Appeal and the Superior Courts. The judiciary has a hierarchical structure with the California Supreme Court at the top, California Courts of Appeal as the primary appellate courts, and the California Superior Courts as the primary trial courts.
Richard Liebowitz is an American entrepreneur, Broadway producer, former lawyer and photographer specializing in copyright law. While a lawyer, he was known for filing a high number of lawsuits against media organizations on behalf of photographers who assert that their images have been used without permission, and for receiving multiple disciplinary sanctions culminating in his suspension from practicing law in New York and ultimately in his disbarment.
Spevack v. Klein, 385 U.S. 511 (1967) was a Supreme Court of the United States case in which the court held in a plurality decision that the Self-incrimination Clause of the Fifth Amendment applied even to attorneys in a state bar association under investigation, and an attorney asserting that right may not be disbarred for invoking it. It was a very close case, being 5–4, with the majority only winning with the vote of Justice Abe Fortas who wrote a special concurring opinion on the matter. This case directly overruled Cohen v. Hurley, 366 U.S. 117 (1961), a nearly identical case in which the Supreme Court had just recently upheld an attorney's disbarment for his refusal to testify or produce documents in regards to an investigation. This case has since spawned much debate, with some arguing this decision "signaled the decline of bar disciplinary enforcement".