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On the Abuse and Limits of Lawyer Discipline

Despite being routinely underfunded, lawyer disciplinary processes must operate in ways that merit the confidence of both society at large and the American legal profession.  This means that those who participate in lawyer grievance adjudication must be vigilant against systemic abuse (whether deliberate or unintentional) and mindful of factors that limit institutional competence.  This Essay argues that, in many instances, disciplinary authorities should abstain from deciding grievances that would require them to rule on unresolved scientific questions, particularly if controversial matters are involved.  The Essay further urges that grievance rulings must be consistent with American constitutional principles which favor robust debate of public issues and hold that even unpopular parties have a right to legal counsel.  A lawyer should never be subject to discipline based on allegedly misleading advertising absent persuasive evidence that the lawyer knowingly, recklessly, or negligently made a provably false assertion of fact.

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