Theories of Professional Discipline

A. Causes of Disciplinary Infractions

There is relatively little material on lawyers’ disciplinary offences, possibly due to the aura of secrecy formally surrounding disciplinary processes.^[1225] Professional discipline fits, however, within an extensive literature on ‘white-collar crime’, a term, coined by Sutherland in 1939.^[1226] This is highly relevant, despite being non-specific regarding occupations.^[1227] Even though lawyers often do not appear in ordinary courts as a result of disciplinary cases, and may not appear in criminological studies of white-collar crime, the circumstances and psychology of perpetrators are similar.^[1228] One recent piece of work on lawyer disciplinary processes, Abel’s case studies of disciplinary tribunal cases, explores the inter-relation of three factors: the propensity of the individual for transgression, the nature of the organisation they belong to and the regulatory environment.

B. Offenders

i. Types of Offences

Various offences can lead to disciplinary proceedings. Some occur in a professional’s private life and outside the context of legal work. These offences could include any­thing from assault to theft. They may be reported to the offender’s professional body by judges or other interested parties. They may be prosecuted as disciplinary offences because the offender has brought the profession into disrepute. In such cases, the conduct may be so serious that serious sanctions, such as striking off, are considered. This is usually on the basis that the offence reveals a character flaw from which the public needs protection.

Of the disciplinary offences that occur at work, Abel focuses on three categories: neglect, fees and over-zealousness. Cases involving neglect of client matters, and various problems over fees, are common matters for disciplinary tribunals.

ii. Motivation

It is difficult to research personal motivations in relation to crime. Some work is based on symbolic interactionism. This is a method which explores how reality is defined by patterns of communication, interpretation and adjustment between individuals. Research of this kind suggests that people often offer motivations that are ‘neutralisation strategies’, rationalisations of their behaviour.^[1229]

Coleman identified six neutralisation strategies which white-collar offenders use to justify their actions. They may claim positive motives, for example, cheating customers to pay employees. They may deny harming individuals or suggest that everyone else was doing the same thing. Or they may argue that the rules they infringed were an unjust or unwarranted interference in a free market.^[1230] These claims suggest a ‘higher reason’ for misbehaviour, or that what was done was not wrong.

Acquiring wealth is a common motive for deviance, but it is not always driven by greed. For many people, wealth and success are central goals of human existence.^[1231] Capitalism fuels inequality and a ‘culture of competition’. For some, therefore, only ‘the most capable and the hardest-working individuals emerge victorious’.^[1232] It is sometimes difficult to draw lines between entrepreneurship, commercial innovation and deviant economic activity. Privileged sections of society can sometimes feel that exploitation of others is justified because they have earned or deserve power.^[1233]

Wheeler argues that some people stop acquiring wealth at a certain level, while others see no limits.^[1234] People taking high risks may see themselves ‘as pitting their wits against those of the system in some very high stakes games’.^[1235] Acquisition of wealth at these higher levels may ‘take the form of a true pathology of personality—a person oblivious of the pattern though engaged in it’.^[1236]

Cases of neglect often arise because of the personal circumstances of lawyers.

iii. Character

Psychology distinguishes between personality and character. Personality is the col­lection of traits a person presents to the outside world. It is relatively superficial. Character is represented in the deeper and usually hidden traits. These traits tend to be only revealed in specific, unusual circumstances. Therefore, someone may be straightforward, a personality trait suggesting honesty. Their dishonest character would only be revealed by, for example, not returning a purse found with money in it. Character traits are based on beliefs. These shared norms and values of social life are absorbed and accepted during primary socialisation within the family and by secondary socialisation by peer group, school and other agencies.^[1239] They may be difficult to change once they are set. That is why the criminology literature suggests that delinquency is probably the result of individual propensity. A recurring finding is that those involved in one type of illegitimate activity are often involved in others. Those convicted of white-collar crime often have previous arrests.^[1240]

Another important variable is age. This is the strongest demographic variable for offences of neglect. Maturity brings together opportunity, the main factor in deviance, with character failings and other pressures. This combination of factors is a potent cause of professional delinquency. In Canada, Arthurs also found that disbarred sole practitioners shared a profile.^[1241] They were typically 10-year qualified with average law school performance.

A common character trait demonstrated by some attorneys in Abel’s case study was that, when charged, they stubbornly refused to change course. They made their situa­tions worse with adversarial tactics and bluster. Abel suggests that ‘they generalize the dependence of clients to argue that they are performing an essential service to society, which will suffer most if they are suspended or disbarred’.^[1242] They seemed to believe they were above the law.^[1243] Also, however, their legal background seemed to have blurred their behavioural boundaries; there was an arguable defence to every charge.

C. Organisations

i. Organisational Culture

Historically, the deterrent effect of discipline, in both criminal courts and professional tribunals, has been directed towards the individual rather than their employing organ­isation. This tends to ignore or downplay the impact that the organisation can have on individual delinquency. Humans have a tendency to assume that something is accept­able if others around them do it. Whistle-blowers are often exceptional. Failings are, therefore, often endemic in organisations. The criminology literature shows how new recruits to occupations are inducted into ‘fiddles’ as a form of protection for existing staff. There are numerous self-deceptions which perpetrators share in order to relieve themselves of moral responsibility.

Understanding of the role of organisations in professional deviance is underde­veloped in the literature. Sutherland’s deliberately vague definition of ‘white-collar crime’ was ‘crime committed by a person of respectability and high social status in the course of his occupation’.^[1244] His original text often describes the acts of relatively lowly employees.

ii. Opportunity Structures

Sutherland asserts that deviance results from a coincidence of motivation and oppor­tunity, the attractiveness of the latter being determined by prospective gains, potential risks, the compatibility with ideas, beliefs and rationalisations and any other avail­able opportunities (the actor’s opportunity structure).^[1245] Studies of organisations are important in understanding the opportunity structures for breaches of professional norms. They can show, for example, consumer exploitation by misuse of legitimate business techniques.^[1246]

iii. The Impact of Firm Size: Solo Practitioners,

Small Firms and Large Firms

Whereas, in legal culture, sole practice is an idealised ethical form, research in many jurisdictions suggests that busy sole practitioners, acting for individuals in convey­ancing, estates and litigation, are the most likely subjects of complaints and, often, disciplinary action. Abel’s literature review indicated that sole practitioners and small firm lawyers are disproportionately represented in disciplinary cases.^[1247] The examples, he says, are usually small scale, repeated infractions, frequently resulting from igno­rance, indifference or inattention. They are usually individual failures, ‘unique and unrepeated’.^[1248]

Abel’s study of six US disciplinary cases often involved solo practitioners in their middle to late career. They worked hard, often alone for long periods of time. Sole practitioners also have the perfect opportunity; they have no partners to advise or constrain them. Because they have no one to share burdens they are subject to unman­ageable pressures. They may also have the space to develop a distorted mental picture of their relationship to their clients and their work.

Abel noted that his subjects often seemed to have the attitude that clients were lucky to have them, yet were ungrateful for their services. He speculated that solo practitioners can come to feel that, ‘because they punish themselves, clients have no right to complain. But of course there is no connection’.^[1249] Abel’s solo practitioners often found themselves charged because they did not have the resources, financial or emotional, to extricate themselves from difficult situations. The theory that sole prac­titioners tend to be charged because they lack power and resources fits somewhat with Sutherland’s theory that it is the small fry in organisations who tend to be disciplined.

Firm size may also affect other aspects of opportunity structures, for example, the type of work performed. Carlin’s study of the New York City Bar in the 1970s found that lawyers with lower status clientele, working in lower status courts, were more likely to violate ethical standards. Carlin attributed this to the instability of clientele and the temptation offered by personal gain.^[1250] Lower status lawyers also reported more frequent pressure from clients to breach ethics.

D. The Regulatory Environment

i. Ethical Consensus

The regulatory environment affects behaviour, and hence discipline, through the mechanisms of norms, education and training, detection and deterrence. In his study of the New York City Bar, Carlin analysed the acceptance of ethical norms by status of firm, dividing them into basic and elite norms. Basic norms proscribe behaviour that is generally socially unacceptable, for example, cheating and bribery. Elite, or paper, norms cover conduct acceptable in the wider community, such as advertising or accepting commissions for referring business, which are frowned upon by professional elites.

Carlin found that the different kinds of norm were differently accepted by lawyers, depending on the status of the field in which they operate.^[1251] A large majority of law­yers in all firms accepted certain basic standards, usually pertaining to lawyer client relations. Only high status lawyers, usually those in large firms, accepted norms going beyond wider social norms.

Based on his research, Carlin suggested that, where there is no consensus on ethical norms, there are three possible results. First, there can be random disagreement, where it was not possible to predict adherence to particular norms. Secondly, there might be plural standards, where different groups uphold different or opposing norms. Thirdly, there may be a norm hierarchy, where certain norms are universally upheld, but only a minority adhere to additional, more demanding norms.

ii. Regulatory Focus and Bias

In a diverse market of providers, as described by Carlin, regulators have a difficult task in calculating where to deploy maximum effort. Do they focus on large units and large transactions, where the consequences of breach are magnified? Or do they direct energies at smaller units, where the risk of infraction may be greater? Regulators must also decide when to prosecute offenders and when to take other action.

Explaining the prevalence of those with low social standing before courts and tribunals was the main purpose of Sutherland’s exposure of white-collar crime. His aim was to challenge the myth that deviance was the preserve of the lower classes. He argued that the statistics could be explained by the failure to bring prosecutions against those from elite groups, or the failure of prosecutions that were brought. The perception that small firms and sole practitioners are especially prone to ethical breaches may be affected by regulator bias in favour of larger units.

In general, research suggests that action is less likely to be taken when the regulator and regulated parties are close in social background and when regulated units are relatively large.^[1252] Elite organisations may be treated differently by regulators, because it is a greater risk to take them on. It may also be because they respond swiftly and positively to threat by accepting responsibility, working hard to make amends and doing whatever else is necessary to stave off the threat of discipline.

iii. Disincentives to Prosecute

Regulators can try and produce better consensus on norms by ensuring good educa­tion and by socialisation, by reducing the negative impact of workplace culture, by effective detection and judicious use of deterrence. Disciplinary action is often a last resort, possibly for understandable reasons. A dominating aim of professions is to maintain public confidence. Dealing with complaints and discipline openly, publicly highlights professional inadequacies and threatens to undermine self-regulation.³⁰ It is therefore a rational strategy for professional bodies to use disciplinary sanctions in the clearest cases and in cases where offences are likely to become public anyway.³¹ This suggests that professions have a conflict of interest in pursuing sanctions against members.

III.