State courts' approach to lawyer admissions and discipline has not changed fundamentally in the past century. Courts still place faith in the idea that "moral character" is a stable trait that reliably predicts whether an individual will be honest in any given situation. Although research in neuroscience, cognitive science, psychiatry, research psychology, and behavioral economics (collectively "cognitive and social science") has influenced prevailing concepts of personality and trustworthiness, courts to date have not considered whether they might change or refine their approach to "moral character" in light of scientific insights. This Article examines whether courts should reevaluate how they decide whether to allow lawyers to return to law practice after suspension or disbarment for impermissibly deceptive conduct. The Article describes courts' traditional approach, discusses some of the relevant scientific literature, and suggests some possible reasons why courts appear not to have considered such scientific insights. The Article concludes with some thoughts about the utility of the role of scientific research in the disciplinary process.
I. A Century of Professional Discipline: Deviance and
II. The Attorney Disciplinary System: Assumptions,
Objectives, and Decision-Making
III. Cognitive and Social Science Insights into Lawyer
IV. Can Science Improve Judicial Decisions about
V. Why Does the Traditional Approach Persist Without
Regard to Potential Social Science Insights?
Prior to the conference on Julius Henry Cohen's book, The Law: Business or Profession?, the authors of this Article began a discussion about lawyers who commit serious wrongdoing resulting in suspension or disbarment. Many of those lawyers sought readmission at some later point and we wondered whether those lawyers were demonstrably better people by the time they sought readmission to the practice.
We were particularly interested in those lawyers who engaged in serious deceit: impulsively stealing clients' money, swindling people in investment schemes, or profoundly deceiving clients about fundamental aspects of cases (such as whether a complaint was even filed). We did not focus on lawyers suffering from disabling depression or wrestling with a substance disorder that may have explained their misbehavior, but on those whose deceptive behavior was not readily explicable, perhaps not even to themselves.
Our first inquiry was why lawyers jeopardized their livelihoods by engaging in serious dishonesty. Were these bad-acting lawyers always corrupt, or was their dishonesty anomalous? The research led us to consider whether honesty is a relatively stable personality trait, as many presume, or whether generally honest individuals are capable of serious dishonesty. We also wondered how courts decide whether lawyers suspended or disbarred for dishonest acts are worthy to return to practice. We were not confident that courts had a solid grip on either why people committed such deceptive acts or whether they were reformed. These conversations were the antecedents for this Article, which was prepared in connection with a conference on Julius Henry Cohen's 1916 book, The Law: Business or Profession?
Cohen's book provides a window into how courts, assisted by bar associations, handled misconduct and discipline in the early twentieth century. It turns out that nearly one hundred years later, despite remarkable advances in all aspects of cognitive and social science, courts proceed much the way they did in Cohen's day--they rely on aphorisms and intuition to decide whether lawyers are ethically fit to practice.
In this Article, we examine the process of suspension, disbarment, and readmission in light of some twentieth and twenty-first century scientific knowledge. We begin by looking at professional discipline a century ago, during Cohen's time. …