Disbarment Is Rare in Cases of Attorney-Client Sexual Contact | Hacker News Reader

Disbarment Is Rare in Cases of Attorney-Client Sexual Contact

law360.com

32 pointsalex-wood44 comments

This gentleman groped a client in open court. I can definitely see disbarring someone for that alone, even setting aside the other charges. Also—and not that it is relevant to the disbarment—he is 86 years old. Wow.

On the other hand, I'm not sure I agree that the public is unsafe if he has his license indefinitely suspended vs. being formally disbarred. That sounds like catastrophizing. The reality is he won't be practicing law again either way, so it's less of a safety issue than a statement. I agree with disbarring him for what he did, and I agree with disbarring him to make a statement about the ethics we hold attorneys accountable to, just not as an actual issue of public safety.

"It's not a matter of actual public safety that someone sexually assaulted someone else in a courtroom" is such an odd hill to make a stand on. You're also not using the word "catastrophizing" correctly.

Being a member of the bar is literally an attestment of your character and fitness to the general public.

The message sent by "indefinite suspension" would be that somehow their conduct was deserving of consideration or that they were deserving of the "honor" of keeping their status as a member of the bar.

Read my comment again, we're on the same page. And I'm not going to quote the dictionary to you, but there's nothing in that comment I would correct.

86 years old might actually be relevant. An uncomfortable truth is that an uncomfortable fraction of our behavior is actually simple neuro-physical and not really a good basis for defining character. There was a case of a man, no criminal record, live a perfect life, upstanding member of his community, living in a nursing home. One day he had a stroke. After the stroke, he raped someone else in the nursing home. Again, live his whole life not being a rapist, up until the point where he had a bit of brain damage.

The question of his guilt is a very uncomfortable topic. If some rapists are simply brain damaged, are not guilty on account of not being capable of being in control in the first place, are any of them guilty? At what point are you in control enough of your own neuro-chemistry to be responsible for what it does? Is anyone really responsible for anything?

In the brain, like in anything, the most complex functions are the most fragile. Poke a few random neurons with a stick you're more likely to get a high-abstraction failure like speech or consciousness than you are to get a low level failure like forgetting to breath. Human sexuality and social behaviors are at least complex enough to be fragile. Fragile enough to be noticeably different in some people on drugs or with brain damage.

So who knows, maybe the slow deterioration of faculties for someone 86 years old really does matter.

There's a difference between physical responsibility as in cause and effect and moral responsibility. Assuming we have no free will then moral responsibility is fiction. However it is useful fiction. That is punishment is therefore amoral but still required as a feedback mechanism to correct physical processes. If we can separate these 2 things, then one can accept punishment as required, without judgement of morality.

As far as disbarment goes, does that really matter. The goal of licensing is to protect the public who will rely on his services. If he cannot provide that service adequately, he should not be licensed, weather his failure is a moral one or a disability which cannot be accomodated.

> The question of his guilt is a very uncomfortable topic.

For something possibly similar, there's also Typhoid Mary. Becoming hazardous to society doesn't necessarily have to have a moral component.

https://en.m.wikipedia.org/wiki/Mary_Mallon

Foxes guarding henhouses. Lawyers disciplining lawyers. Cops disciplining cops.

Do any of these sound like good ideas? If so, do they work in practice?

I would like to think they do on some level, but there is definitely some level of softness applied to the blows they take. For instance, us “normal” people, when charged with a crime, are pulled through the ringer and taken through sometimes multi-month trials to prove ourselves. When a cop gets a bit trigger-happy and kills an innocent man in cold-blood and almost kills his wife, after knowingly knocking on the wrong house, they’re put on paid leave.[0]

I truly do want to believe it works in practice, but I have my limits.

[0] - https://www.reuters.com/world/americas/video-shows-n-mexico-...

> “normal” people, when charged with a crime, are pulled through the ringer and taken through sometimes multi-month trials

Not to mention that a defence in a criminal trial will likely bankrupt all but the top 1%. Which is why innocent people almost always take a plea deal.

People are quick to say "I will sue", or "I will defend my innocence to the end", until presented with the potential bill. Justice is truly the providence of the rich, and the rich only.

it's less about money and more about time. you take the plea deal and go away for 2 years tops, or you try your luck with a trial and risk 10 if convicted.

While I agree on your last point, it should be noted that at least in the US for criminal matters you must have a court appointed lawyer if you prove to be unable to pay for one out-of-pocket. For civil cases however, you’re out of luck.

Additionally, plea deals are also taken because they’re a “known”. You can quantify the result, and you can’t in a court case. Not to mention most people really don’t want to deal with the stress and find probation + fine + misdemeanor a worthwhile cost.

I’m happy with teachers disciplining teachers and doctors disciplining doctors, for what it’s worth?

We absolutely need their input, but it also takes the input of patients and nurses, as well as parents and students to make sure that the people who are supposed to be being served by doctors and teachers are getting what they need. When doctors and teachers refuse to hold themselves accountable, there needs to be other voices in the room.

It's the same situation with medical licensing boards allowing doctors to tell their patients that their illness is caused by alien DNA and demon sperm.

The near total lack of accountability and oversight erodes the public's trust in critical institutions that our society depends on to stay functional. It destabilizes our nation. Corruption spreads when it isn't kept in check. The longer this goes on, the more difficult it will be to correct, and however long that takes, it'll take much longer before trust is restored.

It feels like a common paradox.

Why should lawyers discipline lawyers? Why should cops discipline cops? Why should lobbyists advise legislators? Why should banks help to shape financial regulations? Why should corporate aircraft engineers participate in the aircraft certification process?

Because they are subject matter experts. Who else is better placed and better suited to do it, and who else would charge less for the service?

I don't think it's wise to cut every possible corner and consider only what saves the most money.

What we want is something that works for the people being served. Subject matter experts are great for input, but just because foxes are experts in chickens, being so intimately familiar with their ins and outs, that doesn't mean that they should run the hen house. We need other stakeholders involved too. The people who depend on those systems need to be represented. The people those institutions serve. The people who will be impacted by them.

>It feels like a common paradox.

"Quis custodiet ipsos custodes?" a.k.a. "Who watches the watchmen?" is a 2000 years old quote so it's not a new problem either.

Subject matter experts may be good at defining what the standards should be - that does not mean they need to be wholly and independently in charge of enforcement of those standards.

This article is doing some sleight of hand; there's a significant difference between consensual sexual contact with a client and sexual assault of a client.

The latter almost certainly should involve disbarment more often, the former is more an ethical issue than a criminal one.

> former is more an ethical issue than a criminal one

Isn't addressing (relevant) ethical issues a big part of what disbarment is for? If there's an actual criminal issue, lawyers can still be prosecuted.

There are ethical issues, and there are ethical issues.

I can't say much about law, as IANAL (except to note that there are a lot of divorce attorneys who will help their clients celebrate the dissolution of their marriage by sleeping with them), but I am a doctor, and the philosophy of "don't sleep with your patients" is in our ethics. But where do the boundaries lie?

In, say, psychiatry, it's never ethically acceptable to sleep with your former patients. They're off-limits. But if the therapeutic relationship is absent (radiologist, pathologist - they never saw your face), or minimal (I'm an anesthesiologist, and if I were single I'd have no compunction about dating someone I'd put to sleep once for an unremarkable surgery, and I don't think ER doctors should be prohibited from dating someone whose shoulder they popped back into joint once), there's really no risk of abuse of power because there's no ongoing professional relationship.

If the personal relationship is a direct consequence of the professional one, and the power is unequal because of that, then it's ethically problematic. If they're purely coincidental, it's probably not. And from what I know of the law, lawyers sleeping with their clients happens - but it's usually not ethically challenging.

> if the therapeutic relationship is absent (radiologist...)

I think I'm turning Japanese.

I didn't mean to imply that there isn't a relevant distinction, in light of which this behavior should not lead to disbarment; certainly some examples of unethical behavior should not. I'm just saying that distinction is not "ethical vs criminal".

I see your point now. Sorry for the misunderstanding.

I do think that some things that are nominally unethical are not, in practice, unethical at all.

When you get down to it, there isnt anything inherently unethical about consensual sexual relations with a client.

There is a possibility of abuse, and the appearance of impropriety, but the reality of these characteristics can only be determined on a case by case basis.

Mishandling client funds will do it. Mishandling the client themselves? not so much.

In the 2018-initated Florida federal litigation involving one of the con-artists pretending to be the creator of Bitcoin his latest stunt to avoid paying what he owes is having his wife roll up and claim to have actually been the true plaintiff all along and attempting to file motions to dismiss the real plaintiff's attorneys and kick the real plaintiff out of the case.

The con's attorneys are now up for contempt. Is it for their involvement in this farce pretending to be both sides of the case? No. It's because they filed a required debtor-information form attorneys eyes only (and persisted in defending it when challenged) both in clear violation of the standing confidentiality agreement and when the only information on it had already been testified to by their client in open court. They'll probably get free of it too, suffering nothing more than the other sides costs they created.

Attorneys can make a mockery of the legal system and not get disbarred. It's rare for them to get in serious trouble for anything other than a fairly narrow set of bright line violations.

I knew an attorney that was disbarred after having an affair with their client's spouse. But the disbarment wasn't due to the affair, its because they used client funds to finance it.

I have a feeling that disbarment is much too rare in general and that there would be a lot more justice in our "justice system" if it were more common.

I generally agree with your point, but feelings are a bad metric to, essentially, annihilate someone's livelihood. Especially for questionable -- but consensual -- contact with a client.

How exactly do investigations into attorney misconduct work? Everything is supposed to be confidential.

Do investigators have the ability to look into protected documents? Does the client have to sign something?

This is fortunate for the characters of LA Law, who would all have been disbarred during the first season.

I hate attorneys and I have an ambitious wife who's out of my league, so I'm strongly opposed to workplace sexual misconduct.

That said, unless the sexual misconduct clearly and directly pertains to the honest practice of law, I don't really see the extreme punishment of disbarment as appropriate.

If you read the article, it focuses on a specific attorney who assaulted multiple clients while they were incarcerated as well as in open court.

Of course the article focuses on an egregious anecdote. That's how propaganda works.

They imply with the anecdote that it's a typical case, when the vast majority is garden variety murky workplace sexual harassment shenanigans.

Not defending any harassment, but most of it isn't stuff that justifies permanently ruining the attorney's life.

How does your out your league, overly ambitious wife feel on that matter?

As officers of the court it is appropriate to hold lawyers to a high standard. Beyond that, as the attorney-client relationship has a special place in the law the abuse of that relationship is especially egregious. Finally, as trained lawyers admitted to the bar, these lawyers fully know how egregious and awful their behavior is. They are simply sociopaths and predators.

Are we all just going to carry on like this first sentence isn’t bonkers?

It's layered comedy that requires some unpacking.

Gotta have a very high LSAT score to appreciate it.

layered comedy doesn't translate well on the internet.

"the failure state of witty is asshole"

I tried.

I'm sorry... what? I don't think your perception of your wife has any bearing on how much you should be against workplace sexual misconduct? What??

Maybe she's REALLLY ambitious and out of their league.

You are spewing incoherent nonsense.

yo can i get that wife's number

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