In 2004 the Australian state of Queensland overhauled its attorney disciplinary system, taking authority away from the bar and creating a new independent agency. Queensland is not alone; other Australian states have similar programs, as does the U.K., Scotland, and Ireland. Much of the world, however, handles attorney discipline like the United States—the same people tasked with regulating the profession are those in the profession.
In this story, we ask: What factors should we consider to reimagine attorney discipline in the United States? Talking to Leslie Levin (University of Connecticut School of Law), who examined the Queensland experiment two years in, as well as Bruce Green (Fordham School of Law), Paula Schaefer (Winston College of Law, University of Tennessee, Knoxville), and Ronald Minkoff (Frankfurt Kurnit Klein & Selz PC), we explore a variety of perspectives on the topic.
Areas to consider for reform
Lawyer disciplinary systems certainly have their critics. Some of the aspects that practitioners and scholars would like to reform include:
- Transparency
- Bias, both for solo practitioners and people of color
- Selective rule enforcement
- Judicial intervention
- Funding
- Rehabilitation and diversion programming
Ensuring greater transparency
If the purpose of attorney discipline is to protect the public, Bruce Green, Louis Stein Chair of Law at Fordham School of Law, wonders, “I’m not sure the public has enough of a perception of what’s going on in the disciplinary process to actually have an opinion.” What does he think would help? More transparency. “In general, when clients send a letter complaining about the lawyer, most of the time nothing happens,” he says. “Eventually, they get a letter back with a not very fulsome explanation.” Indeed, in many states, disciplinary proceedings are not public, and even a disciplinary sanction is not always made public, he says. Suspension and disbarment are made public if they are imposed, but a range of private options such as private reprimands are available for less serious misconduct, which the public might not learn of.
In “The Case for Less Secrecy in Lawyer Discipline,” Leslie Levin, Hugh Magill Professor of Law Emerita at the University of Connecticut School of Law, likewise says that when discipline takes place in private, it is difficult to ascertain how much recidivism occurs. Enabling more transparency would allow researchers and the public to understand if the disciplinary process was both fair and effective, Levin says.
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Mitigating bias
How might we redesign the disciplinary process with equity in mind? In 2019 the California State Bar commissioned a study on racial disparities in disciplinary processes, finding “statistically significant disparities in probation and disbarment,” especially between white male and black male lawyers, as well as for solo practicing attorneys. After interventions like prompting attorneys of their right to counsel and a policy to archive complaints after five years, the California State Bar returned in 2024 to find that the data showed a trend in the right direction for racial gaps but not for solo and medium- or large-firm attorneys.
Susan Saab Fortney and Heather Zirke conducted a thorough review of racial and ethnic disparity in the attorney disciplinary system, noting that the research shows an intersection between lawyers of colors and solo and small-firm practices. For instance, a 1988 examination of racial bias and solo/small-firm practices in New Mexico found that Hispanic attorneys were both more likely to work in small or solo firms and disciplined at a rate of two to one. Further, small-firm or solo practices are much more likely to encompass legal fields, such as criminal, family, and personal injury, that receive more complaints than other areas of law.
Well‑resourced clients are more likely to sue or negotiate than file bar complaints.
But what about attorneys at large law firms? Paula Schaefer, Art Stolnitz Distinguished Professor of Law at Winston College of Law, University of Tennessee, Knoxville, says the disciplinary system is “used unevenly,” largely because different clients respond to misconduct differently. Well‑resourced clients are more likely to sue or negotiate than file bar complaints. “The result is that we don’t see as many disciplinary complaints against lawyers in bigger firms,” she says. That does not mean they lack ethics problems—only that their clients have other ways to respond. Schaefer does not necessarily believe this is a problem: clients have a variety of ways for dealing with lawyers they believe are engaging in misconduct, including professional disciplinary proceedings or formal litigation (for example, for malpractice).
For a disciplinary panel, large-firm misconduct tends to be harder to prosecute, too, says Levin. “Those firms are going to get other fancy lawyers to represent them, and they’re going to fight tooth and nail,” she says.
Understanding enforcement, judicial intervention, and funding
Courtroom discipline could have different implications than bar discipline. Schaefer would like to see more judges not only sanctioning lawyers during litigation but also reporting those issues to the state disciplinary board. “A lawyer who is referred for discipline for discovery misconduct under rule 3.4, for example, will have a disciplinary record,” she says. “And when they seek pro hac vice admission to another court, they’ll have to report that.” Dealing with the license of the lawyer looks more personal, she says.
Violations of some rules governing courtroom conduct rarely get sanctioned by disciplinary boards, says Green. That reflects negatively on the regulatory process because it looks odd to have rules that are not enforced. Disciplinary authorities have to make choices, and there’s a wide gulf between what might seem like serious misconduct (stealing money) versus minor (an improper jury argument or a frivolous argument), he says. “Maybe the problem is these things should not be in the rules of professional conduct,” Green says. “Maybe they should be in the rules of procedure so that you know that these are the standards governing lawyers, but you don’t treat it as if this is a crime by lawyers.” For Green, who authored a paper “Selectively Disciplining Advocates,” the larger issue is confidence in the system. Overzealous advocacy and frivolous lawsuits can tax the court system. Is a court sanction enough of a deterrent?
(It should be noted that court sanctions can be quite onerous, and lawyers are supposed to report any discipline, including from judges, in pro hac vice applications. A recent court sanction to Quinn Emmanuel attorneys mandated the firm design an internal ethics training as well as pay almost $3 million in fines for misleading the court regarding witness testimony.)
The biggest problem that all the systems face is funding.
Ronald Minkoff, Frankfurt Kurnit Klein & Selz PC
“I wish that disciplinary authorities conceived of their jobs somewhat more broadly,” says Levin. “They really tend to have a narrow focus on certain kinds of misconduct, and they miss other parts.” Part of this is the reactive nature of the work. But what would make it possible for such agencies to be more proactive? “Part of it is a money problem,” says Levin.
“The biggest problem that all the systems face is funding,” says Ronald Minkoff, a partner at Frankfurt Kurnit Klein & Selz PC. “We have courthouses literally falling apart in New York, and then you try to convince the court system to give money to discipline lawyers, who often are the ones who contribute to the judges’ election campaigns. That’s not a recipe for success, but one of the things we need to do is fund this better.”
Including nonlawyers
In a 2025 article with Cathal T. Gallagher, Rebecca Haw Allensworth proposes that the U.S. medical board should look more like the U.K. medical board, arguing that a core problem with medical licensing systems is that physicians are not experts in regulation. They might be more likely to keep “bad apples” in the system rather than levy the appropriate sanction. But lawyers who judge lawyers may be experts in regulation. What, then, is the answer? Is it to have other types of expertise and perspective on the committees?
In Queensland, for instance, the commissioner of the new independent agency was not a lawyer but an expert in consumer protection. “He could look at [the process] with a fresh eye and say, Why are we doing it this way? Why aren’t we giving some money to complainants when they’re hurt by the lawyers? Why don’t we have more mediation?” Levin says.
[Lawyers] do not have a monopoly on wisdom about the way lawyers are supposed to behave.
Bruce Green, Louis Stein Chair of Law, Fordham School of Law
Many states, like Connecticut and Massachusetts, require nonlawyers to take part in disciplinary hearing panels. Green has seen the success of this practice firsthand. In his time volunteering on disciplinary hearings early in his career, he would frequently be placed on a panel of four, with one individual a nonlawyer. In a hearing, members of the panel would listen to testimony and ask themselves: Who do we believe? He says, “I don’t know that lawyers are any better at determining credibility than someone else. [Many of the nonlawyers] brought to the process the kind of common sense that we hope that a jury will bring to the trial process,” he adds.
In one instance, his panel was asked to make a recommendation about a sanction. As he tells it:
The previous panel had heard the case, and all the lawyers on the panel thought that the lawyer had not engaged in misconduct, but the nonlawyer disagreed. The panel chair helped the nonlawyer write a dissenting opinion, and when it went up to the appellate court, it agreed with the nonlawyer’s dissent. I think that reflects that we do not have a monopoly on wisdom about the way lawyers are supposed to behave.
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Reassessing rehabilitation and diversion
As chair of the Committee on Professional Discipline in the New York City Bar Association during the 1990s, Minkoff joined other attorneys in pushing for the Lawyers Assistance Program—a free and confidential service available to those in the legal profession grappling with drug or alcohol abuse, mental health, and more; the service was eventually founded in 1999. At the time, there was active resistance to participation in such programs as an alternative to discipline, Minkoff says, and he believes more could still be done to encourage its use and, more generally, an attitude toward rehabilitation over punitive measures.
States might consider assessing if diversion is having its intended effect by examining the rate of recidivism, as well as considering which misconduct is appropriate for diversion and which is not.
Different states, however, have different approaches to rehabilitation. For instance, the majority offer diversion in some cases. While diversion—where lawyers might take a targeted CLE in lieu of formal discipline—could be a useful tool for first-time offenders who commit minor offenses, Levin wants more data collection around the practice to understand its efficacy. For instance, Levin and Susan Saab Fortney were asked to examine Wisconsin’s diversion program and noticed that the program was too often afforded to “frequent flyers,” which made them question whether diversion was really working. Wisconsin subsequently reformed its practices. Still, she believes, states might consider assessing if diversion is having its intended effect by examining the rate of recidivism, as well as considering which misconduct is appropriate for diversion and which is not.
States could also be drawing on another innovative feature from Australia: its use of proactive management-based regulation (PMBR), Levin says, in which a standard questionnaire helps lawyers determine office management and good bookkeeping: “It is partly a way to let the regulators know what is going on in their offices, but also for practitioners to consider how well their systems work,” Levin explains.
Toward a more robust system
For many, this might be a moment for the profession to examine its own rules—and how that fits with what states are doing. In 2023 Minkoff joined six other experts in professional responsibility to call on the ABA to review the U.S. attorney disciplinary process, noting that the organization has not substantively reviewed the model disciplinary enforcement rules since their adoption in 1989. The ABA cannot lead if its templates lag, but all of this is for nought without the resources to make it happen. “We need a more robust system,” Minkoff says. “We need a system where there are more prosecutors and more resources so that the rules can get enforced and that ethical complaints don’t linger.”
Image credit: Shutterstock // Lek in a BIG WORLD
