Attorney discipline records that don’t include disbarment would be automatically expunged after eight years under a proposal approved on Nov. 14 by the State Bar of California’s governing board.
The State Bar’s Board of Trustees approved the new discipline policy even though 84% of non-attorneys who commented on the plan disagreed with it. The new proposal would lead to the removal of such discipline records from the State Bar’s website provided no further discipline issues occurred over the eight-year period preceding expungement.
The State Bar claims the proposal, which now goes to the California Supreme Court for final approval, is designed to improve the discipline system’s fairness and effectiveness. The State Bar asserts the changes would be a way to reduce past racial disparities in discipline cases, since State Bar data shows that black male lawyers are three times more likely to be placed on probation than white male lawyers.
“Expungement of discipline history other than disbarment was viewed by the (State Bar’s Ad Hoc Commission on the Discipline System) as a means of redressing historical racial disparities in discipline and aligning the State Bar with broader criminal justice trends and the practices of other regulatory agencies,” the State Bar said in a news release.
Board of Trustees Chair Brandon Stallings called the new policy fair and forward-thinking.
“These decisions reflect our dedication to safeguarding the public while fostering fairness and equity,” Stallings said in a statement emailed to the Southern California Record. “By recognizing the efforts of those who have rehabilitated or encountered administrative setbacks, we are striking a thoughtful balance between accountability, transparency and the opportunity for redemption within the legal profession.”
The State Bar has also called for changes to the California Public Records Act to reflect the expungement process.
The reaction to the proposal among those who are not attorneys, however, has been negative. The State Bar recorded 445 public comments on the proposal, among them 311 from non-lawyers. Within this group, 84% disagreed with it, while only 12% were in favor. Among the attorneys commenting on the proposed expungement process, nearly 70% either agreed with it as written or would favor it if modified, according to State Bar records.
Those who disagreed with the policy expressed concerns that it could unfairly conceal past attorney misconduct from the public, reduce transparency about the legal profession or reduce public trust in the profession.
“Transparency is crucial in maintaining public trust and ensuring that attorneys are held accountable for their actions,” one of the commenters said. “Clients must have the ability to conduct thorough research to make informed decisions when selecting legal representation. This transparency is especially important when an attorney’s actions have caused harm to a client.”
Policy supporters, however, stressed that professionals can make mistakes and that expungement opportunities provide attorneys with incentives to overcome problems such as alcohol abuse or past lapses in professional conduct.
A study published on Nov. 11 on the removal of attorney discipline records in Florida offers some warnings about expungement policies. The research, which was conducted by law professor Kyle Rozema of Northwestern University, concludes that attorneys who have their conduct issues stricken are 10 times more likely to offend again compared to lawyers with spotless records.
But the study also concluded that the act of hiding or expunging a discipline record does not in itself cause misconduct. It’s just that having a prior record of misconduct seems to be the best predictor of committing similar acts in the future, Rozema’s analysis states.