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5 Nat. Resources J. 299 (1965)
To Purify the Bar: A Constitutional Approach to Non-Professional Misconduct

handle is hein.journals/narj5 and id is 301 raw text is: TO PURIFY THE BAR: A CONSTITUTIONAL APPROACH TO NON-PROFESSIONAL MISCONDUCT* CARL M. SELINGERt AND RODRIC B. SCHOENt A court called upon to discipline an attorney for non-professional misconduct faces a troublesome and distasteful task. Nevertheless, it has been generally assumed that if the house is to be cleaned, it is for those who occupy and govern it, rather than for strangers, to do the noisome work.' Whether or not the task of discipline is to be entrusted exclusively to the legal profession, one would hope that cumulative experience might by now have established guidelines for reaching intelligent decisions in this area. Unfortunately, this hope has not been realized. In 1883, Mr. Justice Field commented on the vagueness of thought on this subject in discussions of counsel and in opinions of courts.'2 More recent critical comment has at best only touched upon the fundamental problems.3 *The quoted phrase in the title is taken from the court's statement in Ex parte Burr, 4 Fed. Cas. 791, 796 (No. 2186) (C.C.D.C. 1823): The object of an attachment of contempt is to punish the offender by fine and imprisonment. The object of the present proceeding is to purify the bar; and the utmost power which the court can exercise against the party, upon this proceeding, is to strike his name from the roll. t Associate Professor of Law, University of New Mexico, Albuquerque. I Chairman, Board of Editors, Natural Resources Journal. 1. People ex rel. Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487, 493 (1928) (Cardozo, J.). A few states try disciplinary cases before an ordinary civil jury. See Note, Due Process of Law in State Disbarment Proceedings, 37 Notre Dame Law. 346, 351 (1962). Although the fact-finding abilities of jurors are entitled to respect in disciplinary pro- ceedings, see text p. 364 infra, there is no reason to suppose that jurors are equally well qualified to judge professional fitness. Even if the jury is strictly limited to fact is- sues, there is the danger that the publicity of a trial may both inhibit the filing of just complaints and encourage spiteful charges. One commentator has advocated the inclusion of lay members on bar disciplinary committees as a means to assuage popular suspicions. Bradway, Moral Turpitude as the Criterion of Offenses That Justify Disbarment, 24 Calif. L. Rev. 9, 25-26 (1935). This suggestion merits serious consideration, but like many other procedural questions connected with disciplinary proceedings, it lies beyond the scope of the present article, which deals with substan- tive standards for discipline. For an integrated discussion of disciplinary procedures, see generally 37 Notre Dame Law., supra, at 346. See also Willner v. Committee on Character and Fitness, 373 U.S. 96 (1963). 2. Ex parte Wall, 107 U.S. 265, 302 (1883) (dissenting opinion). 3. Some illumination is given by the following comments: Dreyfus & Walker, Grounds and Procedure for Discipline of Attorneys, 18 Law. Guild Rev. 67 (1958) ; Note, The Imposition of Disciplinary Measure for Misconduct of Attorneys, 52 Colum.

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