The Risks of Expunging Attorney Discipline Records: A Study
A recent working paper has shed light on the potential risks associated with expunging attorney discipline records. The study, titled “Expungement of Lawyer Disciplinary Records: Evidence from Florida,” conducted by Kyle Rozema, a professor at Northwestern University Pritzker School of Law, revealed some concerning findings about the impact of expungement on attorney behavior.
The study focused on Florida’s attorney discipline system, where disciplinary records are posted on the state bar’s website and automatically removed after 10 years. Rozema’s research found that attorneys who had their disciplinary records expunged were nine times more likely to be disciplined again compared to lawyers with a clean disciplinary record.
Maintaining disciplinary records online, rather than expunging them, has been suggested as a way to protect the public by serving as a signal of heightened risks. However, some states, like California and North Carolina, have implemented or are considering expungement processes for certain disciplinary actions.
In California, a 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.
Similarly, North Carolina adopted a state bar review committee recommendation with an expungement process for certain disciplinary actions, excluding cases involving sex with clients, making false statements to the court, and engaging in fraud.
Rozema’s study focused on approximately 103,000 Florida lawyers who obtained their state licenses in the past 70 years. The research revealed that 4.1% of lawyers had been publicly disciplined, and 1.6% had been disbarred. Among the disciplined lawyers who were not initially disbarred, a significant percentage reoffended within a few years of their first discipline.
The study found that lawyers who had their records expunged reoffended at similar rates to lawyers disciplined before 1997, whose records were never posted online and then expunged. This suggests that expungement itself may not have a significant impact on whether lawyers reoffend.
However, Rozema emphasized the need for further research on how expungement policies influence public protection. Long-term visibility of professional discipline could potentially serve as a deterrent for misconduct, as continuing to publish disciplinary records beyond 10 years may decrease lawyers’ propensity to engage in wrongdoing.
Moreover, the visibility of professional discipline could also impact the distribution of harm in the legal market. Publishing disciplinary actions may decrease harm to sophisticated clients who only hire lawyers with clean disciplinary records, but it could increase harm to vulnerable clients if previously disciplined lawyers are more likely to take on clients who are unaware of their past misconduct.
Future research should explore the extent to which expungement leads to general deterrence and how it may change the distribution of harm through its influence on the market for legal services. Understanding these dynamics is crucial in ensuring public protection and maintaining integrity in the legal profession.
