ANALYSIS: Court-Ordered Lawyer Sanctions Take a Nosedive

It hasn’t been an easy two years for the legal profession from an ethical standpoint. Misdeeds by high-profile lawyers in the wake of the 2020 election have raised doubts about the future of lawyering as a whole. And recent headlines mentioning massive monetary sanctions and disbarment don’t inspire confidence that unethical conduct will abate any time soon.

But are lawyers really behaving this badly? I decided to take a look at the sanctions that are being issued to try and get a handle on the state of lawyer behavior. And the results are fascinating.

Trying to track national trends in lawyer sanctions is difficult because there’s no national database with disciplinary statistics. Each state has its own disciplinary authority, and not every state reports data on lawyer discipline. Furthermore, courts can issue sanctions separate from any state disciplinary body when attorneys violate ethics or court rules. So there’s a real hodgepodge of information.

Unlike most state-ordered sanctions, however, court-issued sanctions can be tracked via dockets, so I decided to run a Bloomberg Law dockets search for two types: those meted out via a court’s inherent power to sanction, and those dispensed for Rule 11 violations.

The number of mentions of inherent power to sanction in federal district and appellate court orders has fallen by a shocking 96% over the past decade, from 760 mentions in 2013 to 28 in 2022.

The number of mentions of Rule 11 sanctions has fallen by almost the same percentage as those for inherent powers—91%—during this same time frame, from 785 mentions in 2013 to 70 in 2022.

While Covid likely played a role in bringing the numbers down even further in the past few years, the real free fall began in 2015 and ended in 2017—well before 2020—for both types of sanctions.

So are lawyers really cleaning up their act? Maybe. It could be that the bad acts of some high-profile lawyers are tarnishing the industry’s reputation and cloaking what’s really going on—an actual drop in unethical lawyering. I wrote just over a year ago that a falloff in disciplinary complaints and sanctions in several states coincided with an uptick in legal industry changes and other efforts to better address discipline.

But the precipitous drop in federal court-ordered ethics sanctions can’t just be explained away by saying that attorneys simply did a 180. Maybe the overtaxed federal courts suddenly decided to leave discipline largely in the hands of the state disciplinary authorities. But if states are seeing declines as well, perhaps this really is the beginning of a new era in lawyer ethics.

Bloomberg Law subscribers can find related content on our Default Judgments & Sanctions Practical Guidance page.

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