Bruce A. Green

Document Type

Article

Disciplines

Legal Ethics and Professional Responsibility

Abstract

After lawsuits challenging the results of the 2020 presidential election failed spectacularly, some wondered whether the plaintiffs’ lawyers would be disciplined for filing frivolous complaints. Time will tell. But, if these lawyers are not disciplined, one should not be surprised. This Article presents an empirical study of the New York disciplinary process, which confirms that advocates who violate disciplinary rules by overzealously pursuing their clients’ interests, such as by making frivolous claims, are rarely punished in the disciplinary process. That is because disciplinary prosecutors, operating in secret, have discretion as to whether to bring formal charges against lawyers who violate the rules. They ordinarily exercise that discretion by weeding out cases involving advocacy misconduct that they regard as minor or that they believe to be better addressed by trial courts.

Employing the allegedly frivolous election challenges as an illustration, this Article argues that disciplinary charging discretion raises four questions that the legal profession and the public should give greater consideration: whether rule drafters should remove rarely-enforced advocacy rules from the disciplinary codes; whether disciplinary agencies are under-enforcing advocacy rules; whether disciplinary authorities are arbitrary or unprincipled in selecting whom to prosecute for advocacy misconduct; and whether disciplinary authorities should be more transparent about how they make charging decisions so that the public can better understand whether advocacy rules, and authorities’ exercise of discretion in enforcing them, serve the public interest.

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