Transparency and professional discipline

Late last month, the Supreme Court of the United States changed its practice relating to public access to lawyer disciplinary proceedings. Here is Lyle Deniston's account of the new policy on Scotusblog:

Under the new disclosure policy, the Court’s announcement made clear, public availability of that docket will be the general rule. It will apply to documents filed after February 1. But if there are reasons to keep an attorney’s response confidential, that will be considered on a case-by-case basis, if sought by the lawyer involved. Typically, a lawyer is notified that potential disciplinary action is being considered by way of a “show cause” order, to which the lawyer then has a chance to respond and to argue against a disciplinary order.

One wonders whether the United States Court of Appeals for the Armed Forces is considering a comparable change. At the moment, all that is published are brief orders that are uninformative as to the misconduct giving rise to the disciplinary action. It is believed that disciplinary dockets are not available to the public.

By the same token, the Judge Advocates General have disciplinary authority over lawyers practicing before courts-martial, employing processes that are shrouded in secrecy, with the results available only if released by the unfortunate attorney or obtained in redacted form under the Freedom of Information Act. Short summaries are published from time to time by one branch, and at least one other has disseminated a list of disciplined attorneys -- but the details of how lawyers get into trouble should be known. Just what kinds of misconduct will lead to suspension? Are the services applying the same yardstick to these matters? (If so, why do they still have separate rules of professional conduct?)

Professional discipline, like corrections, is an understudied, important aspect of military justice. Improved transparency with respect to attorney (and, for that matter, judicial) discipline would foster greater public confidence in the administration of justice. CAAF and the TJAGs ought to be leading on this issue. Perhaps this subject should be added to the work list of the DoD General Counsel's Military Justice Review Group.