Does the California State Bar Discriminate Unlawfully?

Earlier this month, various news outlets announced a finding in a California study that black male attorneys are three times more likely to be disciplined by the State Bar than their white male counterparts.[1] Some of the news accounts treated the study findings as conclusions that the Bar had engaged in race discrimination. One particularly irresponsible website proclaimed that “bar discipline is totally racist.”[2] Indeed, the California State Bar itself apparently plans to hire consulting experts to help it achieve “bias-free decision-making and processes,” to eliminate “unintended bias,” and to consider how, if at all, to weigh prior complaints in the disciplinary procedure.[3]

The California Bar’s report was prepared by a social scientist, George Farkas, of the School of Education at University of California, Irvine. Based upon data from attorneys admitted to the California bar between 1990 and 2008, Professor Farkas reported crude prevalence rates of discipline, probation, disbarment, or resignation, by race.[4] The disbarment/ resignation rate for black male lawyers was 3.9%, whereas the rate for white male lawyers was 1%. Disparities, however, are not unlawful discriminations.

The disbarment/resignation rate for black female lawyers was 0.9%, but no one has suggested that there is implicit bias in favor of black women over both black and white male lawyers. White women were twice as likely as Asian women to resign, or be placed on probation or be disbarred (0.4% versus 0.2%).

The ABA’s coverage sheepishly admitted that “[d]ifferences 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.”[5]

Farkas’s report of October 31, 2019, was transmitted to the Bar’s Board of Trustees, on November 14th.[6] As anyone familiar with discrimination law would have expected, Professor Farkas conducted multiple regression analyses that adjusted for the number of previous complaints filed against the errant lawyer, and whether the lawyer was represented by counsel before the Bar. The full analyses showed that these other important variables, not race – not could – but did explain variability in discipline rates:

“Statistically, these variables explained all of the differences in probation and disbarment rates by race/ethnicity. Among all variables included in the final analysis, prior discipline history was found to have the strongest effects [sic] on discipline outcomes, followed by the proportion of investigations in which the attorney under investigation was represented by counsel, and the number of investigations.”[7]

The number of previous complaints against a particular lawyer surely has a role in considering whether a miscreant lawyer should be placed on probation, or subjected to disbarment. And without further refinement of the analysis, and irrespective of race or ethnicity, failure to retain counsel for disciplinary hearings may correlate strongly with futility of any defense.

Curiously, the Farkas report did not take into account the race or ethnicity of the complainants before the Bar’s disciplinary committee. The Farkas report seems reasonable as far as it goes, but the wild conclusions drawn in the media would not pass Rule 702 gatekeeping.

[1]  See, e.g., Emma Cueto, “Black Male Attorneys Disciplined More Often, California Study Finds,” Law360 (Nov. 18, 2019); Debra Cassens Weiss, “New California bar study finds racial disparities in lawyer discipline,” Am. Bar Ass’n J. (Nov. 18, 2019).

[2]  Joe Patrice, “Study Finds That Bar Discipline Is Totally Racist Shocking Absolutely No One: Black male attorneys are more likely to be disciplined than white attorneys,” Above the Law (Nov. 19, 2019).

[3]  Debra Cassens Weiss, “New California bar study finds racial disparities in lawyer discipline,” Am. Bar Ass’n J. (Nov. 18, 2019).

[4]  George Farkas, “Discrepancies by Race and Gender in Attorney Discipline by the State Bar of California: An Empirical Analysis” (Oct. 31, 2019).

[5]  Debra Cassens Weiss, supra at note 3.

[6]  Dag MacLeod (Chief of Mission Advancement & Accountability Division) & Ron Pi (Principal Analyst, Office of Research & Institutional Accountability), Report on Disparities in the Discipline System (Nov. 14, 2019).

[7] Dag MacLeod & Pi, Report on Disparities in the Discipline System at 4 (Nov. 14, 2019) (emphasis added).

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