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The Clark Committee: The Origins of the Disciplinary System

Attorney discipline in Pennsylvania, as in most states, has not always been administered by a statewide Disciplinary Board. Up until the 1970s, attorney discipline was mainly the province of county courts and bar associations. Standards were arbitrary, procedures varied widely, and enforcement was often haphazard.

In the late 1960s, the state of attorney discipline throughout the country was chaotic. The American Bar Association (ABA) responded to the sorry state of lawyer ethics with multiple initiatives. The House of Delegates of the ABA adopted the Model Code of Professional Responsibility on August 12, 1969, and the states had begun the process of incorporating the Code into their laws. Lawyers admitted before 1988 will recall the Model Code and its hyphenated Disciplinary Rules (DR).

The ABA also turned its attention to the procedures and process by which discipline was administered. In 1967, the ABA empaneled a Special Committee on Evaluation of Disciplinary Enforcement, headed by former Attorney General and Supreme Court Justice Tom Clark. The Special Committee, which became known as the Clark Committee, spent three years studying the state of attorney discipline around the country, and in 1970 issued a landmark report called Problems and Recommendations in Disciplinary Enforcement, which has become known as the Clark Report.

After studying the disciplinary processes in the states, the Clark Committee concluded that certain problems were pervasive. Issues they identified included:

  • Decentralized practices, resulting in undue local influence and disparate outcomes based on local relationships and attitudes;
  • Lack of exchange of information, resulting in disbarred attorneys merely moving to a different county to resume practice;
  • Lack of responses to disability and impairment of lawyers;
  • Lack of independent, unbiased investigation;
  • Great variations in procedures;
  • Lax reinstatement policies, by which disbarred lawyers were allowed to resume practice without any examination of their current fitness;
  • Lawyers convicted of serious crimes continuing to practice for years as their cases wound their ways through the appeals process; and
  • Reluctance of lawyers to report or testify about misconduct of peers with whom they work on a regular basis.

The Committee identified changes that were needed to address these issues. First, they recommended that attorney discipline be centralized into a statewide system under the control of the state Supreme Court. They opined that a reliable system for financing the disciplinary system was necessary, and one of the solutions they mentioned was funding the system through a system of assessments paid by all attorneys admitted to practice. They advocated establishment of an independent, professional staff to objectively investigate and prosecute complaints. They stressed the need for broad access to information on discipline, so lawyers adjudicated guilty of misconduct could not continue to practice simply by moving to another jurisdiction or failing to disclose their discipline.

Today’s lawyers will recognize that the current structure of the disciplinary process has roots in the guidance provided by the Clark Committee. All fifty states have adopted disciplinary structures reflecting the advice rendered in the Clark Report.

But the Committee was not the only group looking into the creation of a more effective disciplinary process. In Pennsylvania, a similar process was underway. The Pennsylvania Bar Association had already appointed a Special Committee on Disciplinary Procedures to make recommendations for the founding of a statewide disciplinary system. This process led to the founding of the Disciplinary Board of the Supreme Court of Pennsylvania, whose jurisdiction took effect November 1, 1972.

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