This article advocates for formally adopting the ABA Standards for Imposing Lawyer Sanctions (the “Standards”) in Missouri attorney ethics discipline cases. Since the Standards have not been adopted in Missouri, the Missouri Supreme Court is essentially left with total discretion in the rules for ethics punishment. Review of the Court’s case In Re Sanford P. Krigel, 480 S.W.3d 294 (Mo. Banc 2016) (“Krigel”) shows how the lack of formal rules increases the possibility for a poor decision.
The case of Krigel is generally interesting due to the difficulty of explaining the extreme divergence between the two stages of the case: 1) Judgment of violations and findings of fact, and 2) punishment. The two phases of judgment and sentencing are familiar to many practitioners of criminal, administrative and other types of law.
In Missouri, the judgment phase starts with Missouri’s version of the ABA model rules (the “Rules”) regarding what constitutes a violation. Every state has adopted some version of the Rules. https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/alpha_list_state_adopting_model_rules/ retrieved 4/13/2020.
Missouri did so in 1985 with Missouri Supreme Court Rule 4. See Id.
For the second phase, determining the level of sanction, Missouri has not formally adopted the ABA model: the Standards. Instead, the Court is merely “guided” by two sources of law: 1) The Standards, and 2) the Court’s own caselaw. So, in effect, any time the Court wants to, it can rely on its own words instead of the Standards.
The Court makes an official mens rea determination during the sanctions phase to decide the general level of punishment, and then tailors the specific punishment.
The decision in Krigel was criticized from the moment it was entered. The case was heavily split, 4-3, with the dissent author favoring disbarment. The majority ordered a six-month suspension and stayed the execution of the suspension under two years of probation. So, effectively there were zero days of suspension.
This is despite Krigel being found to have violated four Rules, and the Missouri Supreme Court having made extensively serious factual findings regarding the violations, during the first phase of the case.
As the dissent saw fit to mention, after Krigel’s actions, the trial court set aside the original trial court judgment due to fraud, stating,”The facts of this case shock the justice system that the people of Missouri enjoy. The Court finds the actions of officers of this Court [referring to Krigel] to be at minimum disturbing to the administration of justice.”
It seems that the Supreme Court has not relied on Krigel for anything other than the most general of standards. However, the case has received attention in many secondary sources, including the generally excellent criticism by Bradley Craigmyle, Picking Winners and Losers: The Subjectivity of Missouri Disciplinary Decisions, 82 Mo. L. Rev. (2017).
The Missouri Supreme Court’s “Guides” for Determination of Sanctions
The Missouri Supreme Court has stated it has the inherent power of discipline. In re Gardner, 565 S.W.3d 670, 675 (Mo. Banc 2019). This is much like trial courts are said to have the inherent power of contempt: Courts have the power to enforce their own rules. The Missouri Supreme Court is the final arbiter of attorney ethics decisions and review de novo all recommendations of a disciplinary hearing panel involving serious violations. Id., at 675 (Mo. Banc 2019). There is no direct review of the Court’s decisions. The proceedings are sui generis, meaning they are their own type of proceeding. In re Mills, 539 S.W.2d 447, 450 (Mo. Banc 1976). Thus, the decisions are not governed by criminal, administrative or any other area of law.
The general standard that the Court applies is to protect judicial integrity and the public. In re Forck, 418 S.W.3d 437, 441 (Mo. Banc 2014). The Court states that it is “guided” by two sources for sanctions: 1) the ABA Standards and 2) the Court’s own caselaw. In re Gardner, 565 S.W.3d 670, 675 (Mo. Banc 2019). Thus, the Court can cite to the Standards as it sees fit. However, there is nothing to prohibit the Court from veering away from the Standards and relying on its own interpretation of its own words as the determinative guideline.
Essentially, given this discretion, there are no “rules” in a traditional judicial sense. Although the case in many ways is not typical, the Court’s decision in Krigel can be reviewed to see some of the problems with not adopting the Standards.
In Re Krigel, 480 S.W.3d 294 (Mo. Banc 2016)
Krigel represented a young unmarried, pregnant mother-to-be. He executed a plan to fulfill his client’s desires to have her child adopted after the birth. Krigel was found to have misled the Court and the father’s attorney through his representation of the mother in a case that ended in an uncontested adoption.
At issue was Krigel’s implementation of a “passive strategy” to help achieve the uncontested adoption. He and his client planned to not actively recruit the father in preserving his rights. He would “actively do nothing” to communicate with birth father or his attorney; they would not advise them of their plans.
Krigel’s argument was that the passive strategy is a generally accepted practice among local practitioners and the Judge he appeared before in the case. The emphasis on non-communication makes the strategy naturally run closer to the edges of ethical limitations. However, Krigel argued that he believed that his actions were permissible under the strategy.
Many great law professors were heavily involved in the case. Their roles included co-counsel for Krigel, expert witness and as amicus brief authors. They affirmed that it is commonly accepted that an ethical passive strategy can be achieved. In practice and in the classroom the passive strategy is accepted. It was argued that placing an attorney in a position of having to affirmatively reveal information to their opponent, places tension between an attorney’s duties to their client and their ethical obligations. They cautioned that one must be careful in not unduly limiting a client’s important interest in their attorney having the ability to fully achieve the client’s goals.
Krigel also disputed many facts in the case.
The Violations and Factual Findings
Initially, it should be noted that in no way did the Court generally rebuke the validity of the passive strategy. It was not rejected as a theory written in textbook. It was said to be legitimately possible to execute in practice.
However, the Court did determine in its decision that Krigel’s actions resulted in four ethics violations. His interaction with the father’s attorney and his actions in the adoption case resulted in unfairly depriving the father of his potential parental rights. He did not execute the passive strategy in a correct, acceptable manner. The Court even explicitly found that his actions were not “passive.”
Generally, Krigel was found to have:
- Knowingly, falsely told Father’s attorney that the child would not be adopted without Father’s consent.
- Hindered the administration of justice, by submitting two documents, including the signed Petition, that knowingly, falsely claimed that no one, not a party to the proceeding, claimed custodial rights.
- Pursued a course of action that disregarded the rights of Father.
- Designed his questioning at the adoption hearing to omit essential information and mislead the Court regarding Father pursuing his custodial rights.
Because they are important, the Court’s findings are reprinted in full below, with all bold being placed by the author. The Court’s findings of the four violations were:
“Violation of Rule 4-3.3(a)(3)
Rule 4-3.3(a)(3) requires a lawyer shall not knowing “offer evidence that the lawyer knows to be false ….” Krigel’s questioning of Birth Mother at that hearing was designed to mislead the trial court as to the actual circumstances between Birth Mother and Birth Father.
Prior to the April 2010 hearing, Krigel and Birth Mother discussed his intended examination of her. Krigel’s questioning of Birth Mother at that hearing, while technically truthful, omitted essential information. While representing there was a belief Birth Father may not actively pursue opposition to the adoption, there was no indication that Birth Father stated his acquiescence to adoption. Krigel knew Birth Father was uninformed about the child’s birth, his name was omitted from the child’s birth certificate, and his attorney had contacted Krigel to work cooperatively on the child’s future placement and prevent adoption. Birth Mother’s testimony further indicated that Birth Father was able to be in continuous communication with her, which Krigel knew was untrue. Birth Mother also stated that Birth Father had not visited the hospital after the birth, which was true, but Krigel failed to clarify that Birth Father was not informed of the time or place of the child’s birth. Krigel’s representation to the trial court via his questioning, by permitting false and misleading testimony to be presented, was designed to portray the false impression that Birth Father was not interested in the child or in asserting his parental rights.
Violation of Rule 4-4.1(a)
Rule 4-4.1(a) specifies that when representing a client, a lawyer shall not knowingly “make a false statement of material fact or law to a third person ….” Krigel violated this rule in his communication with Zimmerman, indicating the child would not be adopted without Birth Father’s consent. Further, at the time Krigel spoke with Zimmerman, Krigel knew that he advised Birth Mother not to communicate with Birth Father regarding any information about the child, including the child’s birth or subsequent adoption proceedings.
Violation of Rule 4-4.4(a)
Rule 4-4.4(a) requires that in representing a client, a lawyer “shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person ….” By actively concealing factual information from Birth Father and his counsel so that his client’s position would prevail, Krigel violated this rule. Comment one to this rule provides, in pertinent part: “Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons.”
Krigel advised Birth Mother and her family to have no contact with Birth Father and to not divulge any information to Birth Father regarding the birth of their child. Krigel communicated with Zimmerman, indicating that the child would not be adopted without Birth Father’s consent. Further, Krigel advised Birth Mother and Birth Father to receive “counseling” from Merryfield, who was actively working with Birth Mother to place the child in an adoptive home. Despite actual knowledge that Birth Father wanted to raise the child, Krigel pursued a course of action that disregarded the parental rights of Birth Father and the best interests of the child in remaining with a natural parent. Krigel’s actions served no substantial purpose other than to impair and delay Birth Father’s assertion of his parental rights.
Violation of Rule 4-8.4(d)
Rule 4-8.4(d) provides that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice….” Krigel signed and submitted two documents to the trial court, which hindered the administration of justice.
Krigel signed and submitted a “Petition to Approve, Consent, and Transfer of Custody” to the trial court, stating that Birth Mother did not know of any “other person not a party to these proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child.” This was not a true statement in that Krigel knew the name, address, and attorney for Birth Father. Birth Father was not a party to the proceedings, but one who had a claim of child custody or visitation.
The opportunity for Birth Father to assert his parental rights actively was thwarted by Krigel’s violation of this rule.” (all emphases added)
Chief Justice Breckenridge concurred in the Opinion, but found insufficient evidence for a violation of 4-4.4(a).
At this point things looked bad for Mr. Krigel. However, after this point the standard rules no longer necessarily apply. It is there that things take a dramatic turn in his favor.
Attorneys understand how caselaw operates. But, many may not be familiar with the other source that the Court can choose to rely on: the ABA Standards for Imposing Lawyer Sanctions.
They are very accessible. They are about 12 pages in total (about the same length as one Supreme Court case). Additionally, they are well-organized according to specific pattern, so the general nature of the rules can be understood, even without prolonged, slow scrutinizing.
The Standards are based on presumptive punishments, based on the Respondent’s state of mind. The severity of presumed punishment usually follows this pattern: 1) Disbarment is the presumed punishment for intentional conduct. 2) Suspension is presumed for knowing conduct. 3) Reprimand is presumed for negligent conduct. 4) Admonition is presumed for negligent conduct with little chance of harm.
Many cases involve several violations. The Standards state that the Court’s starting point for the presumed punishment should at least correspond to the worst of the violations.
When finding the worst violation, the harm or potential harm of the violation should be reviewed.
Once the worst violation (worst presumptive punishment) is found, the Court should review any aggravating or mitigating factors to see if there are special enough circumstances to reduce or increase the level of punishment from the presumed one. The Standards have specific lists for potential aggravating or mitigating factors.
Finally, after finding the applicable level of punishment, the Court tailors the specific punishment.
During this process, a key resource is the annotated Standards. The Court can look to see other Courts’ analysis of similar cases, and also see if its decision making is in line with punishments under comparable circumstances.
The Court’s Process To Determine Krigel’s Punishment
The Court started by listing the aggravating and mitigating factors, which is the last step under the procedure for the Standards. The Court found in mitigation Krigel’s practice of over 30 years and his previous lack of ethics violations. The aggravating factors were that he had multiple violation findings in the present matter and did not understand what he did wrong. No analysis was made.
Since there were four violations, the Court had to choose the worst violation to begin its analysis. The Court did not analyze the facts, did not review the different violations, did not determine Krigel’s state of mind, did not offer a citation and did not offer any explanation or analysis. The Court simply deemed Krigel’s lack of candor towards the tribunal as the worst violation.
Neither did the Court review the harm of the violations. The trial court ended up setting aside the adoption and Father was eventually granted custody. Father accumulated tens of thousands of dollars of attorneys’ fees. Father was deprived of his custody rights for just under one year, and risked permanently losing his rights to his child. The child’s life was almost certainly thrown into turmoil. Krigel’s client’s goals were not achieved. Krigel was paid approximately $22,000 for around ten hours of work.
Eventually, the Court found that suspension, and not disbarment, was the most appropriate standard for that violation. However, the Court never returned to the other three violations to see if a disbarment presumption would be appropriate for any of them.
The Court cited the general disbarment standard for lack of candor towards the tribunal: “when an attorney, with an intent to deceive the court, submits a false document, makes a false statement, or withholds material information, disbarment is the appropriate sanction.”
The facts directly related to this violation involved Krigel’s client falsely testifying about Father not claiming custodial rights.
The Court’s analysis can be seen through its usage of caselaw:
- In re Ver Dught
First, the Court states that disbarment is “reserved for clear cases of gross misconduct, those in which the attorney is demonstrably unfit to continue in the profession” by citation of In re Ver Dught, 825 S.W.2d 847, 851 (Mo. banc 1992). This is a mere general principle that it is not helpful. It does not appear that the Court has listed which types of offenses meet this standard. Contrarily, the ABA Standards are organized in a manner that clearly lists which offenses have a presumption of disbarment.
To begin its rebuttal of the disbarment standard, instead of finding a similar suspension case, the Court points to factual distinctions from one disbarment case: In re Oberhellmann, 873 S.W.2d 851 (Mo. banc 1994). Through it first observation, the Court may have granted itself the power to double the requirement for the normally presumed sanction. The Court implies that disbarment may be inapplicable in Krigel because Oberhellmann involved two, separate unrelated violations. It is likely impossible for any particular member of the bar to catch someone cheating twice in a few months. Thus, attorneys are bound by duty to report violations, while knowing the Court can easily brush aside the presumed standard at its discretion. The Court expresses no concern about the impact of such a power being available to them.
The Court notes Oberhelmann, in addition to producing false testimony, forged a law partner’s signature. This seems to imply that one needs to repeat Oberhelmann’s transgression (or do something comparable) in order for the disbarment standard to be left unrebutted in the other incident.
Furthermore, the reference to Oberhellmann’s multiple violations is not wholly convincing, given that Krigel also committed multiple violations, only as part of the one scheme.
The Court also distinguishes the case by noting that Oberhellmann affirmatively instructed his client to lie on the witness stand. This stunningly implies such a factual finding would be necessary for the Court to find a plan to deceive.
The Court’s points to factual distinctions of a chosen disbarment case, instead of finding a comparable suspension cases. This is surely why the dissent rightfully declares that the Court’s analysis is an “about face” on the normal standards.
The Court does not produce a suspension case where an attorney underwent Krigel’s wide-ranging, consistent plan to deceive. The Court does not produce a case that resulted in suspension merely due to 1) lack of specific instructions to the client regarding their testimonial answers, or 2) not being caught in two separate incidents. A comparable suspension case should generally be required for a rebuttal.
Furthering its shift, the Court cites to Caranchini, 956 S.W.2d 910 (1997) and the Standards for part of the general rule for suspension involving a lack of candor to the court: “Generally, the Court moves to suspension on the ground that the standard is appropriate when an attorney merely knows that a false statement is being submitted and takes no remedial action.”
Caranchini involved a forged document of unknown origin. That case noted the suspension standard because upon discovery that the document was forged, Caranchini had a duty to take remedial measures. Caranchini did not take remedial measures, and instead used the document in the case, so the standard was found by the Court to be too low.
The case illustrates the purpose of the suspension standard including a reference to taking remedial actions: the standard assumes that the false evidence came as surprise to the attorney.
What attorney would remedy their client’s testimony that was produced as part of the attorney’s strategy to create deceptive answers?
Krigel’s questioning was designed to produce misleading answers regarding a material fact of which he was already personally aware. For Krigel to remedy the false answers that he was intentionally producing, would have resulted in undoing all the work that he put in actively thwarting father’s rights, falsely communicating with father’s attorney, and knowingly submitting false documents to the court. Who would remedy their own fraudulent plan?
The Court makes the failure to remedy a mitigating factor for Krigel, when his intentional fraud explains the failure to remedy the false testimony. The Court seems to act as if Krigel’s passivity in failing to remedy the false testimony was the result of Krigel being surprised by it.
This results in the Court choosing knowingly/suspension as the appropriate general level of punishment. When tailoring the specific punishment, the Court quickly jumps to treating Krigel as if he merely made a mistake.
Re Ver Dught’s Reference to Mistake and Other Possibilities
It may be that the greatest insight into the Court’s maneuver to the lower standard is found by its parenthetical summary of In Re Ver Dught, 825 S.W.2d 847 (Mo. banc 1992). After using the case to state that only the unidentified grossest violations can result in disbarment, the Court parenthetically summarizes the case as “ (suspending the attorney for his belief that the law did not require him to disclose facts that he believed were not material and no material fact was falsified).” Id., at 851.
Although the Court’s analysis and rule citation focus on the failure to remedy false evidence, the Ver Dught summary references an attorney not knowing that certain facts were material or that there was a duty to disclose them. So, unlike the failure to remedy analysis, this citation appears to reference a mistake.
The Court acknowledges that a material fact was involved in Krigel. Clearly, having all the necessary parties to a case is material. Furthermore, the Court’s findings already state that Krigel knew it was false to assert that no one else claimed custodial rights. This makes finding the applicability of the citation difficult.
Does the claim of a mistake come into play during the downgrade to the state of mind, and if so, how? Otherwise, what happened?
Court decisions generally can be underexplained. Likewise, flexible legal standards can obscure the law’s meaning. The unclear legal standard, poor justifications, scant explanation and extremely divergent findings and sanction leave one to wonder what is not potentially malleable in the current system.
Under such circumstances, uncovering the rules can be like trying to determine the size and shape of a mountain hidden behind cloud cover. The only option may be to throw rocks and hope to gather information based on how they bounce back. When guesswork is at hand, simply tossing out possibilities may be the only tool. I list some of the possible interpretations of Krigel, from worst case scenario to best:
- The most cynical and nightmarish interpretation would be that regardless of how much the facts show you committed fraud, the Court can fraudulently let you get away with it by concluding you just made a mistake.
The Court made actual factual findings that seemingly could only be considered fraudulent. Krigel defrauded the Judge and the opposing party. This is so bad, that no explanation is even necessary to conclude that it is the worst of the four violations. However, although contrary to the state of mind in the Court’s findings, Krigel said he thought he was doing nothing wrong, so the Court can just claim to believe him and basically let him go during the discipline phase. The false justification by the Court could take many forms, but all would ultimately be explained by a nightmarishly malicious intent by the Court to permit fraud.
We can find a better explanation.
- The Court has to legitimately believe that Krigel made a mistake, but still now has the power to contradict itself
This scenario still allows the mistake to be one of fact. So, the Court believes it can make factual findings regarding a state of mind, and then explicitly alter the factual findings regarding the state of mind during the discipline phase (e.g. he “fraudulently” stole exhibits from the courtroom, being openly changed to he “negligently” took exhibits from the courtroom).
- The mistake must be a reasonable mistake of law to be eligible for the downgrade during sentencing, but the factual findings can still be entirely contradicted
Krigel thought what he did was lawful, and experts said it was reasonable to misjudge the boundary line of a law, so although his mistake was fraud according to the Court, it was a mistake of law that is understandable and therefore his state of mind can be changed during the discipline phase.
This is entirely contrary to the Rules. Fraud is measured by the applicable substantive or procedural law. Rule 4-1.0(d). Fraud is fraud. There is no category for something explicitly being called “fraud,” but then “not fraud” as a matter of ethics. This would be a pointless, extra layer of obfuscation.
- The mistake must be a reasonable one regarding an ethics law
Though I strongly disagree with the reasoning, this is my best guess as to what the Court intended. The Court got distracted by the law professors and the passive theory. They already found that Krigel crossed the line, but they mistakenly thought,”Surely it cannot be that the law professors are mostly talking about this theory in abstractions and generalities! The passive theory must have some application to this case.” So, the Court decides there must be some credence to the idea that Krigel made a reasonable misinterpretation. He made a mistake regarding the limits of the passive theory, and though his interpretation was very likely different from his colleagues and judges, it was a reasonable one to some degree.
This could offer a hint as to why the Court did not review the other violations (even though it still would be troubling to not review them). The Court believed he thought that the passive theory protected all his actions as being ethical.
The theory is problematic. As stated above, fraud is measured by the standards of the applicable procedural or substantive law. It would appear this would be a new theory to suggest otherwise.
Furthermore, to the extent it provides a valid partial defense, it would only tend to show that our ethics rules are poorly communicated, with meanings only available to experts.
The Court’s job is to draw lines. After fraud is clearly detailed and no other state of mind can legitimately be found, crediting Krigel with a lowered state of mind no longer protects a legitimate purpose. It protects fraud, not a lawyer’s ability to zealously represent his client. The abstract standard of the law professor will never be met. More importantly, the limit has already been found and made by the Court.
The Court seems to mistakenly treat the conflict between the passive theory and the ethics rules as an ongoing conflict after it already resolved it.
- Factual findings cannot be changed, but the Court erred
It would be nice to be able to read the case at least clearly enough to have things decided down to this possibility. The Court has no power to change factual findings during the discipline phase. However, under this explanation, there is no room to go from the Court’s factual findings to the lowered state of mind. So, the Court erred in determining that its findings left room for the reduction.
- The Court was correct, but merely negligent in its explanation
This would mean that the finding of a knowledgeable state of mind is supported under the law and the Court’s factual findings. A rewording of the explanation would help more people understand. The Court still cannot contradict its own factual findings regarding state of mind, however. The very strong finding of facts still only prove mere knowledge, but the case citations and explanation were lacking.
This would be a correct result, but still a general failure in messaging to everyone else.
- Good Job
This would mean that the trial judge, dissent and commentators just do not understand the clear, cogent explanation for choosing knowledgeable as the state of mind. No unusual powers regarding changing facts exist. No further explanation is necessary, and the ruling’s detractors just lack comprehension of it.
Poorly and underexplained cases leave open too many bad possibilities.
In other areas of law, cautious judicial restraint is fairly common. This is partially explained by the fact that the Court generally keeps its rulings to the matter in front of it: the parties’ dispute.
The Supreme Court, with no backing rules to support it, is supposed to maintain the judiciary’s integrity. There is even more of an interest is sending clear, general messages regarding the rules. Being restrained and preserving judicial options is not optimal in an ethics system, when greater clarity can be achieved. Yet, sometimes the Court’s general tendency towards nonexplanation can leave unrebutted many unwanted, unintentional possible messages. This is a mistake.
Despite Krigel committing four serious violations and not understanding what he did wrong, the Court stayed any suspension because he had no disciplinary history and had practiced for more than thirty years.
The Court’s weighing of the mitigating and aggravating factors, though certainly not unremarkable, is generally beyond the scope of this article.
Suffice it to say that Krigel was treated more like an attorney that made a mistake, than one that fraudulently executed a plan that partially included one of the worst possible violations.
Advantages of the Standards
Many advantages exist to adopting the Standards, but only some are reviewed here:
- The judicial system would look more ethical if it operated according to identifiable rules. Having no rules is frequently synonymous with questionable ethics. It seems odd that one of the areas of the judicial system with no discernable rules is the area where the rules of fair play are enforced. Judges frequently remind people that they just interpret, not make, the rules. But, in this area, the Court makes the rules with no oversight. It just does not look as good as having rules.
- Procedure helps results. The Court seems sloppy with the steps that is uses to analyze cases. In Krigel the Court simply designates the worst violation before analysis, and after rejecting the disbarment standard, never returns to the other three violations. If the Court adopted the Standards, a standard procedure would come with it, and in theory, better decisions. There needs to be order in the Court.
- It decreases the chances of conflict between the two guides of the Court. In Krigel, the Court seems to suggest that the disbarment standard can be brushed aside, if the Court chooses, simply because Krigel was not caught in two separate incidents. This is a doubling of the standard, and a clear conflict between the two guides that the Court uses.
- It should increase the bar’s trust in and knowledge of the ethics system. The 12 page Standards are accessible, with an easily understood organization. It is difficult for the typical attorney to identify a list of the Court’s variations from the Standards, or to be well-versed in Court caselaw. Identifiable rules might make fewer attorneys so uncertain about what will happen.
- A fresh start would undo the uncertainty created by Krigel. The most powerful and unique tool for the Court is disbarment. Suspensions are generally three years or less, it seems, so disbarment can be a multitude more severe. Krigel makes the punishment of disbarment cases difficult to differentiate from others by resulting in effectively no suspension. The Court essentially goes from fraud to mistake and from disbarment to no suspension. Erasing the unique distinction of disbarment seems to be the quickest way to collapse the system into a chaotic, unpredictable lack of differentiation.
- The intellectual vigor and consistency of the Court’s decisions may increase. If the Court has full discretion, then there may not be much true debate. Lines can be drawn and redrawn at will if you are the final arbiter with no binding rules. Having an objective measuring point raises the standard for justification of decisions, and therefore should make for more consistently high quality decisions. The Court’s unquestionably admirable legal skills would be utilized to build the law in a more cogent way.
The mistake of Krigel shows the needs for adoption of the Standards as sanctions rules. The Court skips steps of procedure, points to irrelevant factual distinctions, easily brushes aside the presumed level of punishment, contradicts its own factual findings and leaves too little explanation for its decision. Too many troubling explanations have not been ruled out by the Court. The public can toss out possibilities and try to find the contours of the meaning, but the lack of clarity is still harmful.
In the end, to fix the problem, the public, academia and the bar should advocate for formal adoption of the Standards. Having clearly identifiable, thoughtfully developed rules would be a valuable tool for the Court in its mission to protect judicial integrity.
- The Standards for Imposing Lawyer Sanctions https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/sanction_standards.pdf as amended 1992, retrieved 4/13/2020.
- The ABA Model Rules for Professional Conduct retrieved on 4/13/2020. https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc_migrated/mcpr.pdf