Crime & Federalism

At Simple Justice, there is an interesting post about a New York lawyer who solicited sex with a 13-year-old girl.  To Catch a Predator Style, the lawyer had explicit chats with someone purporting to be 13-years old.  He agreed agreed to meet her.  Instead, he was greeted by law enforcement. 

The question before the New York Court of Appeals was this: Should the lawyer be disbarred?

The Court of Appeals, in a split decision, said No.  Scott disagrees:

When one assumes the responsibility of being a lawyer, one undertakes the responsibility of trustworthiness above and beyond others.  We aren't close to being as trustworthy as we should (right Marc Dreier?) and should put our effort into being worthy of the license we hold, not trying to get 13 year old girls to engage in sex.  Lever's conduct was sick, but the Appellate Division's decision was simply wrong and disgraceful. 

I think the issue is more ambiguous, and that the answer will depend upon how one views a lawyer. 

There are two major views of a lawyer: lawyer-as-status-symbol; and lawyer-as-weapon-of-mass-destruction.

Some folks say, with italics, I’m a lawyer.  Their entire identity is tied up in their profession.  They go around calling everyone else non-lawyers.  They say things like, “Well, this might not make sense to a lay audience.”  They hate lawyer advertising.  They talk about dignity and gravitas.  They really get into the status of being a lawyer. 

They want to enforce this worldview on other lawyers.

I bought into the lawyer-as-status-symbol model until I went to law school.  I looked around.  I asked myself, “How many of these people would I trust to represent myself?”  When you meet enough lawyers and would-be lawyers, you realize the status associated with the position is a myth. 

Lawyers are people, too.  Lawyers, like other people, are generally only marginally competent.  A few are excellent.  A few are outright dangerous and destructive.

There thus shouldn't be an inherent status that should be attached with being a lawyer.  Any flunky can go to law school (there are enough of them, after all) and pass the bar.  One should be proud of attained excellence in a profession or endeavor. But merely attaining a professional position should not be a status symbol in itself.

The other view of lawyers is lawyers-as-weapons-of-mass-destruction.  A lawyer can ruin your life. 

Have you ever been charged with a crime?  Sued?  A prosecutor can falsely charge you with a crime, and a civil lawyer can file a frivolous lawsuit against you.  A criminal defense lawyer can provide you ineffective assistance of counsel, costing you years in prison that a good lawyer could have saved you.

Lawyers can do real damage to your life.  All lawyers, by virtue of their license, have this power.  Thus, the proper model of a lawyer is one who can harm the public using his law license.

If you view the legal profession as I do, you’re much less concerned with what a lawyer does off-the-clock.  TheNew York lawyer did not solicit a 13-year-old client he was representing in juvenile court.  He didn’t use his inside knowledge or law license to meet the child.  (If he had abused his position of trust as a lawyer, then he certainly should have been sued, and disbarred.)  He met her the same way any other creep would meet a teenager – on the Internet.

Amazingly, though, lawyers who file frivolous lawsuits are never disbarred.  Defense lawyers who provide ineffective assistance of counsel are not suspended.  Prosecutors who file false criminal charges aren’t even identified in publicly-available documents.  Judges who make outright wrong rulings and create judicial fiefdoms are never punished. 

Lawyer discipline is unfortunate.  It currently focuses on the wrong sort of misconduct.  Even most reformers are more concerned with the image of lawyers, rather than the reality of harm lawyers can cause. 

If we want to clean up the legal profession, lawyers who file frivolous lawsuits, provide ineffective assistance of counsel, and file bogus criminal charges are the ones who should be punished.

In other words, a lawyer's conduct is only relevant when it relates to his conduct practicing law.  Under this view, a few more creeps might be practicing law.  But we'd have a fewer frivolous lawsuits and false criminal accusations.   UPDATE: Follow-up post, here.