Collateral Estoppel in Attorney Disciplinary Proceedings: A Hobson's Choice

During the course of a civil proceeding, the court often makes findings of misconduct on the part of counsel. The court may find that a lawsuit is frivolous, that a conflict of interest existed, or that there was a breach of good faith or fiduciary duty (1) while representing the client. (2) At this point, attorneys may be sanctioned or even removed from the case (3) and the client often retains new counsel. In this situation, there is typically no means to challenge or appeal the finding of misconduct until the trial ends (4) and there is a final judgment. (5) In this scenario, the client has no financial or strategic interest to appeal the finding of misconduct because new counsel has been retained or an appeal may disadvantage the client. (6) Out of loyalty to the client, (7) counsel often elects not to exercise his or her right to appeal the finding of misconduct, essentially creating a final judgment on the issue. Yet by declining to take the appeal, counsel may lose its opportunity to litigate the adverse misconduct finding in the first place. This decision may create a binding collateral estoppel effect, which would preclude counsel from relitigating the issue. (8) Such a result would deny counsel a true full and fair opportunity to be heard regarding the finding, even though all of the requirements of collateral estoppel have not been met. (9) In this kind of situation, courts addressing this issue have not considered otherwise valid reasons or considerations for the attorney's decision not to exercise his right to appeal when applying collateral estoppel. Courts have generally found that the existence of a full and fair opportunity for the attorney to appeal satisfies the requirements for collateral estoppel to apply. (10) In instances where counsel did not have an opportunity to fully litigate the finding of misconduct before the court, collateral estoppel should not be applied. (11) Because counsel did not have a full and fair opportunity, it is questionable whether the issue of misconduct was fully before the court; these two requirements of collateral estoppel are closely related. Identity of issue and a full and fair opportunity to be heard on that issue are two closely related requirements of collateral estoppel. (12) In the middle of a sanctions case, counsel may not be prepared to explain to the court why the attorney acted in a particular manner that resulted in a finding of sanctions. (13) Or, concerns of harming the client may have led counsel to not fully litigate the issue, despite the harm to himself. (14) In this situation, counsel is faced with a Hobson's choice: (15) owing professional duties to his or her client, counsel had no free choice to appeal the finding of sanctions. The attorney must accept the sanctions imposed upon him. This article argues that courts should develop an exception to the doctrine of collateral estoppel in attorney disciplinary proceedings to allow the attorney to have a full and fair opportunity to be heard. The limited number of published decisions in the current case law illustrates the problem that attorneys face in the application of collateral estoppel to findings of misconduct. (16) Although most attorney disciplinary proceedings are private (17) and little has been written on the subject, practitioners face this issue on a regular basis. (18) This article begins by providing background on the doctrine of collateral estoppel, the requirement of a full and fair opportunity to challenge the judgment of the civil action, and the procedural aspects of attorney disciplinary proceedings relating to the application of collateral estoppel, including reciprocal disciplinary proceedings. This article then analyzes the problems faced by counsel in attorney disciplinary proceedings with consideration of disciplinary proceedings of other licensed professionals, illustrating that the unfettered use of collateral estoppel in attorney disciplinary proceedings contains too great a risk of "unfairly imposed discipline" in contrast to the small amount of economy gained. …