In the ongoing spectacle of Prenda Law, it’s been mentioned that the lawyers might be “referred to their state bar associations for investigation” as a sanction for their actions.
How serious (as in severity) is that?
It just seems rather mild to me, given the misconduct that’s already been uncovered, let alone what else the court might find.
It’s the route to getting them disbarred. Worse than criminal actions for lawyers.
Being “referred’ to the Bar is no biggie. Having the Bar investigate is a little bigger, and then actual sanctions can be a very big deal.
But I think they have bigger problems:
A simple referral can be a very big deal. Its usually a headache and can haunt you even if you avoid penalities , especially if it is thought (as it often is) that the original action was bad judgement on your part. Its a profession where reputation is the most important thing.
It also depends on who is doing the referring. Most attorneys will have at least one bar complaint filed against them during their careers. The nature of the job is such that people will be angry at you regardless of whether or not you commit misconduct. The bar investigates and generally that’s it.
In the Prenda case, it appears that the trial court is referring the matter to the state bar disciplinary board, which is a big deal. There is effectively a presumption that a complaint filed by a member of the judiciary or another attorney has some factual support.
Yes, depending on the law of the state, the bar association will typically investigate and recommend sanctions which might include no sanction at all, a public reprimand, suspension from the practice of law for a limited period (months to even years, in Ohio), an indefinite suspension, or even disbarment, which is really a professional death penalty. Any sanction would then be imposed by the disciplinary authority, which might be the bar association itself, or a court, or the state supreme court. A referral by a Federal judge will be followed up upon with great alacrity by any bar association.
Interesting blog entry linked to in the Wiki article which DrDeth cited: Deep Dive: Prenda Law Is Dead | Techdirt
The year I did the bar course, we had one of the Benchers (the term for the elected directors of the Law Society) come in and talk to us about the role of the Law Society.
One of his comments has stayed with me ever since: “If you ever get a letter from the Law Society, that letter is the single most important piece of correspondence or file that you have on your desk. If you get disciplined, you may not be able to work on any of the other files again.”
Just to illustrate. One of my colleagues had a complaint against him two years ago. It was a fairly weak claim and was investigated and dismissed. Yet while it was going on, his practice (mostly administrative and appellate work) came to a halt (except for briefs already accepted) and even now it has not fully recovered. People are still vary of instructing him.
For the specific case situation referred to in the OP, and keeping in mind that irt is still sub judice. A private complaint is one thing. A referral by a Judicial Officer is a completely different and dangerous kettle of fish. Not just because of who has sent it, but as judges IME have a very high threshold for referrals and they usually do not send such referrals unless there is overwhelming ex facie evidence of wrongdoing.
Why is this? Does the disciplinary body publish a register of complaints or investigations?
Hmmm this Prenda outfit appears to be the aggressive never-mind-the-ethics lawyers which gives the rest of us a bad name. I have only contempt for this type.
I have been the Chair of our district Law Society Standards Committee which deals with complaints and discipline. All voluntary and thankless work 
but satisfying nevertheless.
Most lawyers are straight up and down people who regard their reputation and their word as sacrosanct. Thus to face a formal complaint can be a shock because by its very nature it is an attack on that lawyer. I recall ringing an experienced lawyer to let him know he was likely to be disciplined and his voice shook. He was clearly worried about being disbarred and the consequences for his family etc. Fortunately nothing so serious came of it but I’ve never forgotten the extent of his shock.
I can say that most lawyers in my experience live in fear of a complaint to the Bar because it strikes at the heart of their identity. Law is not just a job - it is a vocation 24/7.
It does in my jurisdiction (Saskatchewan). It’s all posted on the Law Society’s web-site for anyone to see:
As for the “why” question - a lawyer’s reputation is the most important part of his/her professional standing. If your professional integrity is impugned, it can have a long-lasting effect, even if you are ultimately cleared of professional misconduct.
Doesn’t look like these guys care much about their reputation to begin with.
I am puzzled. Here in Massachusetts, over 97% of lawyers (who had been disbarred) are back in practice, within 3 years.
The late Roy Cohn (licensed in NY and CT) was investigated several times…he never lost his license to practice.
So I suspect that while being investigated by the state bar association may sound serious, it has little real consequences (if the statistics are correct). As far as I know, Cohn never lacked for clients. This info regarding Roy Cohn is taken from “Citizen Cohn”, by Nicholas Von Hoffman.
ralph, do you have cites for your 97% assertion?
It looks to me that Cohn was disbarred.
I assume part of the issue is that each state has separate bars, separate sanctions.
These guys are already bouncing around from Minnesota to Florida to California from what I have read. There was an article at Popehat about the possible consequences, that also mentioned being disallowed from practicing in federal court - which is an “add-on” right to the state bar license.
Does disbarrment in one state carry over to another, or are they independent licenses?
Of course the mess is deeper than that, and assorted criminal charges are a distinct possibility.
In my state, you have to disclose your disbarment in any other jurisdiction in which you practice and show cause why you shouldn’t also be disbarred in Virginia. In other words, the presumption is that if you’re disbarred elsewhere, you should be disbarred for the same reason in Virginia, and the burden rests with you to overcome that presumption.
From Time Magazine of July 7, 1986, “Last week Roy Cohn, 59, found himself on the losing side of what may have been his most crucial legal battle. A five-judge panel of the appellate division of the New York State Supreme Court ordered him disbarred.”
So I don’t believe your assertion about disbarred lawyers in Massachusetts. Do you have any evidence to back it up?
Likewise in Ohio. Also, any felony conviction anywhere will get you automatically disbarred. Failure to cooperate with an investigation into a bar complaint against you can also get you disbarred, even if you’re cleared on the underlying complaint.
All Ohio bar disciplinary cases are reported at time of disposition. For example: Eaton Attorney Suspended
What does disbarrment prohibit you from doing?
I presume a very well-known (even if slimy) lawyer can stilla ct as a consultant, review and draw up legal papers, etc - they just have to be signed and filed by a embarred(?) lawyer when they are filed with the court?
So being disbarred might be a problem for a trial lawyer, but it might irrelevant, depending on circumstances, for some?
Of course, after that, I assume that a client cannot claim privilege for discussions with a disbarred lawyer, if they hire him after the disbarring, for example, to set up the paperwork for their off-shore shell company?