Ethics: Back to the Beginning of the Ethics Column

September/October 2015

By John P. Ratnaswamy, Esquire

In recognition of the 35th anniversary of the American Inns of Court, in this issue I am looking back to the inception of the regular Ethics column in The Bencher.

Michael Frisch, now Ethics Counsel and Adjunct Professor of Law at the Georgetown University Law Center, inaugurated the regular Ethics column in the December 1991 issue of The Bencher. He set its direction by stating that his "goal here will be to address current ethical issues which affect both the role of lawyers in society and the conduct of lawyers in the performance of their duties."
He chose as the column's first subject the May 1991 draft of the "McKay Report". The American Bar Association's McKay Commission performed a comprehensive evaluation of the attorney disciplinary system in the United States and made a number of recommendations in its report, which was finalized in 1992.

As the 1991 column noted, a central focus of the McKay Report was greater transparency to the public of the handling of attorney discipline matters. The report recommended that attorney disciplinary agency records and proceedings should be open to the public absent a protective order governing specific documents or information.

The 1991 column noted that the report also recommended, among other things, that disciplinary officials should be independent; that disciplinary proceedings should be streamlined to promptly remove dishonest lawyers from practice; that complainants should have an avenue to appeal an adverse finding; and a variety of measures to help attorneys comply with ethical standards and for diversion of minor misconduct matters where the attorney had an addiction or mental illness problem.

The 1991 column also noted that the report was intended to bolster public confidence in the profession, amid calls by some for an end to lawyer self-regulation.

There is not sufficient room in this column to discuss in detail the status, a quarter century later, of each of the report's recommendations. I believe it is fair to say, however, that many of the recommendations have been adopted and become embedded in attorney discipline systems.

A large majority of American jurisdictions have made attorney discipline records and proceedings open to the public, in whole or in part, subject to protective orders and to considerations of timing.

Nearly all American jurisdictions now have professional, full-time disciplinary counsel.

Data may well exist, but in the course of preparing this column I did not find data, on whether there has or has not been a general net increase in the pace of lawyer discipline systems since the McKay Report. When I did Internet searches, I found stories from as recently as the last few months complaining about reported backlogs of discipline matters in at least a few states, and in some instances complaints that backlogs were being reduced by means that do not sufficiently protect the public.

My sense is that about half the states allow some form of appeals by complainants, in some circumstances. Quite a few states have no rule on the subject, which I infer means there is no path for such an appeal.

Disciplinary agencies in many jurisdictions have adopted CLE and other programs, of course, to assist lawyers to comply with their professional responsibilities.

Finally, many jurisdictions have adopted lawyer assistance programs to help lawyers with alcohol and substance abuse issues and mental impairments. I discussed the extent of the problem and the Illinois lawyer assistance program in this column in the September/October 2011 issue of The Bencher.

John P. Ratnaswamy, Esq. is a partner in the Chicago law firm of Rooney Rippie & Ratnaswamy LLP. He also serves as an Adjunct Professor of Legal Ethics at the Northwestern University School of Law. He is a former member of the American Bar Association's Standing Committee on Ethics and Professional Responsibility, co-chair of the ABA Solo, Small Firm, and General Practice Division's Committee on Ethics and Professional Responsibility, and one of the chairs of the Hearing Board of the Illinois Attorney Registration & Disciplinary Commission. This column should not be understood to represent the views of any of those entities or Ratnaswamy's or the firm's current or former clients.

© 2015 JOHN P. RATNASWAMY, ESQ. This article was originally published in the July/August 2015 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.