With the U.S. Department of Justice’s proposed intervention in bar disciplinary proceedings, the subject of attorney discipline is drawing new attention. This issue of The Practice examines how a system where lawyers regulate their own is being tested, the questions that raises, and what the path forward might look like. (For related aspects of professional regulation, see previous issues on “Character and Fitness,” “Perspectives on Lawyer Regulation,” and “Reexamining Licensure.”)
In The Licensing Racket: How We Decide Who Is Allowed to Work, and Why It Goes Wrong (Harvard University Press, 2025), Rebecca Haw Allensworth investigates how licensure locks certain people out of professions and others in. In the former case, the standard example is hairdressers, who may learn braiding techniques in domestic settings but require a certain number of hours and cosmetology school to do hair professionally without penalty. As Allensworth explores, however, the way the professions keep “bad apples” in is no less troubling. In the excerpted chapter, “The Fallen Professional,” she discusses what happens in a comparative profession, medicine, when individuals are disciplined—but continue to practice. She writes:
Licensing is meant to soften the harsher effects of a capitalistic market for professional services. The disciplinary process is supposed to take out the lemons and leave the peaches—to place a floor on professional practice so that everyone, even the poorest client or patient, gets someone who meets a minimum competency and ethical threshold. As I describe how the invisible hand works on the market for professionals, ask yourself whether licensing’s promise to protect the public is fulfilled by a system that doesn’t remove the most problematic providers but rather shuffles them to the bottom of the barrel of professional practice.
Turning to the legal profession specifically, we explore how attorney discipline works in practice, using Massachusetts and Mississippi as two examples. “The purpose of the system is to protect the public from lawyer misconduct,” says John Gleason, who ran Colorado’s disciplinary office for two decades. “That’s an easy phrase to say, but to actually do it is pretty complex.”
Bank robbers and drug dealers: they know when they wake up, they’re going to break the law. The misconduct by lawyers and most other white-collar offenders is much more gradual.
Hank Shea, senior distinguished fellow, St. Thomas School of Law
We also take on the critiques of attorney discipline, speaking to practitioners and scholars about what it would mean to reimagine it. The challenges facing the system—bias, transparency, enforcement, funding—are deeply interconnected. “We need a more robust system,” Ronald Minkoff, a partner at Frankfurt Kurnit Klein & Selz PC, says. “We need a system where there are more prosecutors and more resources so that the rules can get enforced and that ethical complaints don’t linger.”
Finally, in “Avoiding the Slippery Slope,” Hank Shea, a former assistant U.S. attorney who prosecuted white-collar crimes, discusses how that vantage point shaped his perspective on discipline and rehabilitation. Shea offers a real-world context of how professionals might stray down the path of misconduct—but also a path forward:
Bank robbers and drug dealers: they know when they wake up, they’re going to break the law. The misconduct by lawyers and most other white-collar offenders is much more gradual. It usually starts with an unethical decision, not necessarily a crime, where there’s a minor transgression—a small effort to either distort the truth or do something that is not right and they get away with it. Whether it’s cheating in the stock market or on your taxes, whether it’s “borrowing” from the client trust account, you almost always get away with it the first time, but that’s the most dangerous because once you’ve gotten away with it, the same pressures or temptations often arise, and you find yourself confronted with another similar decision.