Q. As lawyers, we know that "all persons" should be treated equally under the law. Does that apply to "all lawyers" in the attorney grievance process?
A. Legally speaking, yes. In practice? I'm not so sure.
While concerns over equal protection and eliminating bias prompt us to keep careful statistics on other aspects of our justice system, we pay less attention to the system by which we regulate ourselves.
Many states, including my home state of Maryland, fail to keep – and certainly don't release – data on the race, gender, national origin or age of the lawyers they discipline. Lacking this sort of transparency, the confidentiality of individual cases makes it virtually impossible to assess the fairness of a process on which our careers may hinge.
Maybe we're afraid to look.
So far, only one state has dared to do so. In a "First of Its Kind Study on Racial Disparities in Attorney Discipline," the California Bar examined the likelihood that attorneys of different races, ethnicities and genders may face serious discipline. Looking at more than 100,000 lawyers for whom demographic data was available, the analysis found "statistically significant disparities" among sanctioned lawyers.
The widest gap existed between white male lawyers and their black counterparts. The study showed that black lawyers were three to four times more likely to be disbarred or to face other serious sanctions. Of these, the hardest hit were sole practitioners, who faced discipline more often than those in larger firms.
Without the data to back it up, I can't speak to other jurisdictions. But I doubt that California is alone.
Assuming that the white guys of Big Law are no more ethical than black solos, what accounts for the inequality?
Racism can't be ruled out on conjecture alone. But another possibility may be equally troubling for those who believe in equal justice under law. Despite our profession's continuing plea for greater access to justice, we often punish those who provide it. Returning to their communities to serve the under-served, minority lawyers may learn that no good deed goes unpunished. Forced to manage a high volume of "low bono" work to make less money than their large firm counterparts, these lawyers must juggle more cases with fewer staff and resources than those with a more affluent clientele. When I represent these lawyers, I'm often astonished by how little they charge and how much they do for free.
Yet these lawyers pay a heavy price even when their clients do not. On the front lines of client service, solo and small firm lawyers have little to insulate them from potential discipline. Unlike their colleagues at larger firms, they don't have a team of CPAs to manage their trust accounts, a cadre of associates and paralegals to catch mistakes, or a hierarchy of senior partners to whom angry clients may air their grievances. For these lawyers, the only real "complaint department" is the attorney grievance board.
Would disbarring them truly protect their clients, or would it thin the herd of the very lawyers who give them access to justice?
Rather than answer this question with data on the background of those we punish, disciplinary boards seem content to publish the raw number of lawyers they sanction from one year to the next.
Raw numbers are easier to ignore than people. Without the data behind these numbers, we may never know whether we are truly protecting the public, or are instead reducing their access to the only lawyers willing to help. If we truly believe that "all persons" should be treated equally, its time to take a closer look at how fairly we treat each other.