New California bar study finds racial disparities in lawyer discipline

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A newly released study finding racial disparities in California’s lawyer discipline system will help the bar address unintended bias, according to the State Bar of California’s executive director.

The study found racial disparities in probationary discipline, disbarment and discipline-related resignation, with the greatest disparities between black and white male lawyers, according to a Nov. 14 press release.

Differences could be explained by the number of complaints received about an attorney, the number of investigations opened, the percentage of investigations in which a lawyer was not represented by counsel, and previous discipline history.

The San Francisco Chronicle and the Sacramento Bee have coverage.

“The state bar’s discipline system needs to protect the public in a way that is fair and unbiased,” said Leah Wilson, executive director of the California state bar, in the press release. “The report gives us a road map to continue probing this complex topic and to address any unintended bias in our discipline system.”

The study reviewed probations, disbarments and discipline-related resignations of more than 116,000 attorneys admitted between 1990 and 2009. Discipline outcomes were analyzed for this group from 1990 to 2018.

The study found that male lawyers have higher rates of probation, disbarment and resignation than female lawyers, and the largest racial differences were between black male and white male lawyers.

Specifically, the study found:

• The probation rate for male lawyers was 3.2% for blacks, 1.9% for Latinos, 0.9% for whites, and 0.8% for Asians. The probation rate for female lawyers was 0.9% for blacks, 0.5% for Latinos, 0.4% for whites, and 0.2% for Asians.

• The disbarment/resignation rate for male lawyers was 3.9% for blacks, 1.7% for Latinos, 1% for whites, and 1.1% for Asians. The disbarment/resignation rate for female lawyers was 0.9% for blacks, 0.5% for Latinos, 0.4% for whites, and 0.2% for Asians.

• The total number of complaints filed by the public against lawyers varied widely. For those who had at least one complaint filed against them, the range varied from 46% of black male attorneys to only 17% of Asian female lawyers.

• The percentage of male lawyers subject to 10 or more public complaints was 12% for blacks, 8% for Latinos, 4% for whites, and 3% for Asians. The percentage of female lawyers subject to 10 or more complaints was 4% for blacks, 2% for Latinos, 1% for whites, and 1% for Asians.

• An analysis of how black male lawyers would have fared if they had the same distribution of complaints as whites found that probation and disbarment/resignation rates would have been reduced to 1.4% and 1.6%, respectively, for black males, compared to the 0.9% and 1% totals, respectively, for white males.

Because the public files complaints against black male lawyers at a disproportionate rate, there is a greater likelihood that these lawyers will be investigated and disciplined, the report says. Compounding the disproportionate impact, black lawyers are less likely to be represented by counsel when they are under investigation by the state bar.

George Farkas, a professor at the University of California at Irvine, conducted the study for the State Bar of California.

The bar plans to hire a consultant on “bias-free decision-making and processes” to make recommendations for tools to address unintended bias and offer options for whether and how to take prior complaints into account in the discipline process.

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