Rehabilitating Lawyers: Perceptions of Deviance and Its Cures in the Lawyer Reinstatement Process

By Green, Bruce; Moriarty, Jane Campbell | Fordham Urban Law Journal, November 2012 | Go to article overview

Rehabilitating Lawyers: Perceptions of Deviance and Its Cures in the Lawyer Reinstatement Process


Green, Bruce, Moriarty, Jane Campbell, Fordham Urban Law Journal


ABSTRACT

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.

Introduction
I. A Century of Professional Discipline: Deviance and
     Rehabilitation
II. The Attorney Disciplinary System: Assumptions,
      Objectives, and Decision-Making
III. Cognitive and Social Science Insights into Lawyer
      Dishonesty
IV. Can Science Improve Judicial Decisions about
     Reinstatement?
V. Why Does the Traditional Approach Persist Without
     Regard to Potential Social Science Insights?

INTRODUCTION

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Rehabilitating Lawyers: Perceptions of Deviance and Its Cures in the Lawyer Reinstatement Process
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.