Expunging attorney discipline records could come with risks, according to new paper
A new working paper claims that attorneys who have their disciplinary records expunged are nine times more likely to be disciplined again than lawyers with no history of getting in trouble with attorney licensing agencies. (Image from Shutterstock)
A new working paper claims that attorneys who have their disciplinary records expunged are nine times more likely to be disciplined again than lawyers with no history of getting in trouble with attorney licensing agencies.
The study is based on Florida’s attorney discipline findings. Since 2007, the state bar posts discipline records of members’ profiles online, but automatically removes the discipline reports from the website after 10 years. The public can still obtain the records from the state bar, according to the working paper, titled “Expungement of Lawyer Disciplinary Records: Evidence from Florida.” It was written by Kyle Rozema, a professor at Northwestern University Pritzker School of Law.
“Those results imply that maintaining records online, rather than expunging them, has the potential to protect the public by serving as a signal of heightened risks,” Rozema wrote.
Another plan, to automatically expunge discipline records after eight years, assuming no new misconduct findings are made, was recently approved by the State Bar of California’s board of trustees. This measure requires rule and statute changes, along with approval from the state supreme court and legislature.
Additionally, in June North Carolina adopted a state bar review committee recommendation with an expungement process for certain disciplinary actions. Discipline findings that involve sex with clients, making false statements to the court and engaging in fraud are not eligible for consideration, according to the a North Carolina State Bar website.
Rozema’s paper found that 65% of Florida’s disciplined lawyers qualified for expungement; the remaining lawyers were disbarred before qualifying.
His data centered on approximately 103,000 Florida lawyers who obtained their state licenses in the past 70 years. According to the study, 4.1% had been publicly disciplined, and 1.6% had been disbarred. Among the lawyers who were disciplined but not initially disbarred, 34% reoffended within three years of the first discipline, and 38% reoffended within five years of the first discipline. Further, 42% reoffended within 10 years of the first discipline, and, overall, 45% eventually reoffended.
The study found that in every year between 2007 and 2019, there was an average of 256 nondisbarred lawyers who had their records expunged within the past five years. From that group, 1.6% were disciplined every year in the five years after expungement, compared to 0.2% of lawyers who had a clean disciplinary record.
Rozema found no evidence that expungement itself had an impact on whether lawyers reoffend, according to the paper. In fact, the study found that lawyers who had their records expunged reoffended at similar rates to lawyers who were disciplined before 1997 and therefore whose records were never posted online and then expunged.
In addition, Rozema wrote that more studies should be done on how expungement policies influence public protection.
“Long-term visibility of professional discipline could still protect the public through general deterrence, that is, continuing to publish disciplinary records more than 10 years after the discipline could marginally decrease lawyers’ propensity to engage in misconduct in the first place,” Rozema wrote. “Moreover, it is also possible the visibility of professional discipline could change the distribution of harm.”
For example, Rozema wrote, publishing disciplinary actions “may decrease harm to the most sophisticated clients who may only hire lawyers who have a clean disciplinary record, but it may increase harm to the most vulnerable clients if the labor market effects lead previously disciplined lawyers to be more likely to take on clients who are unaware of the lawyers’ disciplinary record.”
Future research, Rozema wrote, should explore “the extent to which expungement leads to general deterrence and how expungement may change the distribution of harm through its impact on the market for legal services.”
