Saturday, June 30, 2007

Lawyer Discipline Violates Separation of Powers

In most states, executive branch agencies license, investigate, and discipline the professions. A prosecutor investigates allegations. An administrative hearing follows, with rules of procedure ensues. An administrative law judge decides on the merit of discipline. The licensing board then takes action as they see fit. If the licensee, disagrees, he may take the licensing board to court for recourse. The rules of professional licensing are usually enumerated in a licensing act passed by the legislature of the state.

If a complainant gets no satisfaction from the licensing board, he has the option of filing a lawsuit in torts. A jury will then regulate the professional, based on the facts.

Not so for lawyers.

No executive branch. No legislature.

A supreme court writes the Rules of Conduct, a legislative act. It hires a prosecutor to investigate complaints. Prosecution is an executive function. This prosecutor rarely acts on public complaints against lawyers. He mostly acts on complaints from lawyer hierarchy members, such as judges. If this prosecutor finds enough to act further, he prosecutes the lawyer, before the supreme court, his own employer. If the prosecutor is an employee of the court, they have to face him every day. Defendants come and go. The prosecutor is prosecuting before his employer, the Supreme Court of the state.

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