When it comes to attorney discipline, both seasoned and newly licensed attorneys are at risk. One of the most commonly asked questions related to ethics investigations is: does practice experience matter with attorney discipline?
Although every state bar considered aggravating circumstances and mitigating factors, not every state will take the practice experience into consideration. The subject brings forth interesting questions. Should an attorney with substantial practice experience have known better? If they’ve never been investigated or if they’ve gone quite some time without being the focus of the attorney discipline committee, should that be considered? Should an attorney with very little practice experience be held to the same standards as someone whose practiced for decades?
Attorney Discipline Isn’t Necessarily About Practice Experience
It’s important to remember the purpose of attorney discipline. It’s not to arbitrarily enforce some unknown or unwritten set of rules and punish those who don’t. The purpose of attorney discipline is to protect the public. If practice experience becomes a consideration, attorney discipline may not fulfill its mission of protecting the public. Yet, it’s also important to consider the type of harm that occurred. In Nevada, Supreme Court Rule 102.5 lists “inexperience in the practice of law” as a mitigating factor. So, if what happened doesn’t amount to substantial harm to the public, attorney discipline may be less severe for attorneys with little practice experience.
Yet, attorney discipline in Nevada can result in severe punishments for lawyers who are experienced because it is presumed that they should have known better. Nevada Supreme Court Rule 102.5 calls “substantial experience in the practice of law” an aggravating factor.
There are jurisdictions that aren’t so cut and dry in their treatment of practice time. California doesn’t use practice experience as an aggravating factor. Yet, it is sometimes treated as a mitigating factor if there is no prior violations if the attorney is highly experienced.
The Role of Regulation
While attorney discipline may seem, at times, like the goal is to simply punish attorneys, their actual role is to protect the public. Since jurisdictional rules that discuss practice experience aren’t the same across the board, it’s also important for attorneys to remember that they are entitled to a fair proceeding and due process.
Because each jurisdiction handles the attorney discipline and practice experience differently, it’s important for lawyers to know and understand the rules where they practice. This is especially important if you’re admitted in more than one jurisdiction. Not only do you have more rules to follow, you may have to report sanctions from one jurisdiction to the next which could trigger a separate investigation.
If you need guidance through the attorney discipline process, check out The Playbook written by Megan Zavieh. Although geared toward lawyers admitted in California, you can learn helpful tips about responding to attorney discipline investigations no matter where you’re admitted. You’ll also learn about common mistakes made by lawyers who choose to represent themselves.
Looking for help with your defense to the allegations made against you? Zavieh Law provides both full and limited scope representation. To schedule your phone consultation with Megan, click here.
If you receive an ethics complaint from the California Bar and you’re not sure where you should start, check out The State Bar Playbook. This is Megan’s interactive and easy to use guide (and community!) that will help guide you through the process from receipt of the complaint all the way through the appeals process!