The Gatekeepers: How State Bar Associations' Disciplinary Process Is Racialized and Classist

Authors

Brooke Girley
Jonathan Barry-Blocker

Document Type

Essay

Abstract

(Excerpt)

Modern U.S. legal ethics and attorney regulations exist for three ostensible goals: to protect clients from unprofessional lawyers, to compel ethical performance from all licensed attorneys, and to safeguard the legal profession’s freedom to self-regulate. However, a recent study conducted by the California Bar Association revealed attorney regulation is more racialized and classist than these objectives suggest. The study explored attorney disciplinary action and found significant disparities in probation and disbarment along race and class. Put simply, the Bar functioned more to police the “other” than to protect the rights of consumers and the profession. These disparities are not unique to California. Rather, the formation of modern bar associations, particularly the American Bar Association (“ABA”), which other states model their ethics regulations after, reveals a pattern of discrimination against non-white and non-affluent lawyers.

We argue this discriminatory pattern demonstrates that Bars function as racial and classist gatekeepers rather than as consumer protection agencies or representative ethics organizations. First, we review the ABA’s formation and how it shepherded the standardization of legal training and licensing processes. Second, we explore the genesis of legal ethics enforcement as promulgated by the ABA. Third, we track the fitful development of legal ethics. Fourth, we examine enforcement structures and trends, focusing on diverse states. Lastly, we propose solutions to dismantle the gatekeeping function embedded in Bar disciplinary processes.