Until a couple years ago, I barely realized that disciplinary agencies imposed private sanctions.  But after conducting an empirical study on them, I learned that they may be used in 37 states.  Furthermore, they comprise the majority of the sanctions imposed in over half of those states.  I published the results of the study in my article “Private Sanctions, Public Harm?,” published in the BYU Law Review.

So what type of misconduct leads to private sanctions?  Sometimes it can be a single instance of an attorney missing a deadline.  But sometimes it can be much more.

Here is an example from Alabama.  The information about the misconduct is thin, but egregious.  According to the sanction, the attorney “text-messaged [the client] inappropriately, requested inappropriate in-home personal visits with her, and made inappropriate comments and sexual advances.”’  In connection with these actions, the attorney was found to have attempted to violate an Alabama-specific conflict-of-interest-rule, which proscribes attempting to enter into an exploitive sexual relationship with a client, along with a violation of the jurisdiction’s fitness-to-practice provision.

But that’s not all.  He also “led the [client] to believe he possessed the ability to improperly influence a government agency or official.”  This misconduct constituted a violation of 8.4(e) (stating or implying an ability to influence such an official), along with 8.4(c) (the fraud provision).

Why did the attorney receive a private reprimand instead of a public sanction?  There’s no indication based on the information provided by the disciplinary agency.  The more important question is why this type of misconduct toward clients should ever be given a private sanction instead of a public one.  This kind of debate should be occurring, but thus far private sanctions have remained hidden from view.

Of course, this lawyer might go on to have an unblemished career.  Or this lawyer might be sanctioned again.  But we will likely never know.

Although I cannot provide a direct link to the sanction, you can search Alabama Disciplinary History here:  https://www.alabar.org/office-of-general-counsel/disciplinary-history/ (search for “1.8(m)” and select “Private Reprimand” in the dropdown menu.