I wanted to take a moment to acknowledge two readers’ responses to yesterday’s post on attorney-discipline cases. The first response wondered if it would be fruitful to “stratify” these cases to see if certain types of dereliction were more likely to find the court’s liberals favoring harsher punishments than those applied by the court’s conservative majority. I don’t have the information at hand to venture an opinion on this at the moment, but it’s an intriguing question to bear in mind for future research.
The second response sought clarification on certain points, which I am happy to offer. First, I can note that in the 22 attorney discipline decisions that generated separate opinions, the justices unanimously found that a violation had occurred. The concurrences and dissents concerned only the severity of sanction to be imposed.
The second reader also wondered about the statement that the difference in the severity of punishment favored by liberals and conservatives in these cases is “in stark contrast to the justices’ handling of criminal cases, where the conservative justices are much more severe than the liberals.” That sentence could be read as saying that in criminal cases the liberal justices advocate for lighter sentences and the conservatives advocate for harsher sentences. I did not intend to convey that point, and my research does not support such a conclusion. In criminal cases, the justices tend to disagree over issues like the admissibility of evidence, trial procedure, ineffectiveness of counsel and so forth—rather than the severity of sentences. I was merely observing that, during the years under consideration here, conservative justices were tougher than liberal justices on the accused in criminal cases but more lenient than liberal justices when it came to sanctioning attorneys who had committed ethics violations.
I am grateful that these two readers took the time to convey their reactions. Feedback of this sort serves as a form of “peer review” and has in the past suggested ideas for new topics that would not have occurred to me.