The State Bar Discipline from A to ZSample HeaderYou put a lot of effort into getting that license. I. INTRODUCTION You've read the State Bar discipline column every month since you became an attorney, and you don't want to see your name there. The purpose of this page is to explain how the California State Bar investigates, closes, and prosecutes accusations of unethical conduct. Welcome to the State Bar discipline system. II. OVERVIEW Over 10,000 California attorneys are investigated each year, but very few are disbarred. Most survive with careers intact, although the process can be long and expensive. It's always distressing, even when your case is closed. The typical State Bar investigation begins with a complaint received from a disgruntled client. Sometimes the State Bar gets a report of an attorney who is convicted of a crime, or of bouncing trust account checks. Rarely, it opens a case on its own accord. Somebody screens it and decides whether to do a quick phone call or an inquiry letter, or take an in depth look and do a formal investigation. A staff attorney reviews the results of an investigation. If there is no provable case, the investigation ends. If it appears that there is a minor ethics offense, you might get private, nondisciplinary diversion. Otherwise, the confidential phase of the investigation is ended. Public formal proceedings begin with the filing of formal charges in the State Bar Court. Cases are adversary proceedings, with full discovery and formal rules of evidence, tried to administrative law judges. You can appeal all the way to the Supreme Court.
There is a range of nondisciplinary and disciplinary outcomes. Nondisciplinary outcomes Not everyone is that fortunate. Thus, the next section... Disciplinary outcomes The least form of public discipline is a public reproval and it becomes part of your public State Bar record. It is communicated in one of the State Bar's regular press releases throughout California. If you are suspended for less than 90 days, there is no automatic requirement that the suspension be reported to clients, courts, or opposing counsel. If you are suspended for a period of two years or more, you will be required to prove to the State Bar that you are ready to resume the practice of law, before your suspension will be lifted. If you are suspended for any period of time, the State Bar will put you on probation for some period of time in excess of the actual period of suspension. Every disciplined attorney is expected to attend one day of State Bar Ethics School, and take and pass the Professional Responsibility Exam. Some attorneys, because of the severity of the offense, or the little likelihood of success, will choose to resign rather than face State Bar prosecution. Others will lose a contested case and will be disbarred. If you resign or you are disbarred, there are certain requirements you must meet in order to comply with the California Rules of Court. Failure to do so can result in follow up contempt proceedings. See special sections on Criminal Convictions and attorneys with problems involving alcoholism, drugs, or metal health issues. IV. FEES AND COSTS State Bar costs Attorney fees These are estimates, not guarantees. If you go up on appeal to the Review Department or the Supreme Court, add about $15,000 and up for each level of appeal, depending on the length of the transcript and the number of exhibits. Again, these are estimates, not guarantees. V. THE STATE BAR INVESTIGATION In the beginning...
The Court will report any criminal conviction or felony prosecution to the State Bar. In that case, skip directly to section XII, then resume at section VII. If your case reaches the State Bar because of a bounced trust account check, or an overdraft that the bank covered, you will automatically receive an inquiry asking for an explanation. If you are the subject of any other "reportable action," the State Bar will monitor the matter until it is over, and insist upon an explanation of the circumstances. Although it comes as a surprise to many attorneys, the State Bar sometimes receives a complaint and closes it without ever contacting the attorney. Thus if you get a copy of somebody's complaint letter to the State Bar, don't write to the State Bar unless the Bar itself asks for a response! Another big surprise to many attorneys is how often the State Bar frequently closes complaints after investigation. Everyone has a right to complain. Frequently the State Bar can't evaluate the validity of the complaint without hearing a response from the attorney, perhaps securing copies of documents in the attorney's possession. Can I represent myself? Another very common problem for attorneys who represent themselves is the problem of over explanation. That is, the State Bar asks you discrete questions, and you come back and give them so much information, it opens up new areas of inquiry for them. Another area in which attorneys do not tend to represent themselves well is when the investigation turns up rather minor grade ethics offenses. The State Bar system is often amenable to closing down cases in which the offense is technical, or when the offense is minor- grade and done in the heat of litigation. There is a certain amount of finesse required in these situations, as well as the ability to see the problem in perspective. When appealing to prosecutorial discretion, it helps to know how your situation compares to others. The State Bar is an adversary system. People do not become State Bar investigators and prosecutors because they want to help attorneys. The prosecutorial mentality in general is to find fault and fix blame. In recent years, State Bar prosecutors have gotten to be petty, often mean spirited. It also helps to be polite. It comes as a big surprise to us, the number of attorneys who think that being abusive to the State Bar investigator, or trashing the credibility of a former client, will somehow convince the State Bar to abandon an investigation. Au contraire. That's the kind of behavior that keeps them coming. Do I look guilty if I hire counsel? You don't like to deal with angry, self righteous, pro per adversaries who don't understand how the legal system works. Neither do State Bar employees like to deal with angry, self righteous, pro per attorneys who don't understand how the State Bar system works. Most State Bar investigators and prosecutors prefer that you be represented. Counsel like us tend to be efficient and dispassionate. We don't take it personally, and so we can deal with the accusations in a calm manner. Experienced State Bar defense counsel will not over explain and fill up the State Bar file with items that may be interesting to you but are irrelevant to the State Bar inquiry. [Once Jerome told an investigator that the attorney's behavior was TSTP. When he asked what the anagram was, I replied, "Too Stupid To Prosecute." I then explained that I had counseled my client on his behavior, and that he understood what the error was and was too embarrassed to reoffend. The case closed without prosecution. Sometimes you just need perspective, finesse, along with an absence of taking it too personally.] And if you've never read the State Bar Court Reporter, or don't have a copy of the California Compendium on Professional Responsibility, you certainly don't want to show off your amateur status at the State Bar.
One of the first decisions we make with our clients is where to draw the line. There is a statutory obligation to cooperate with the State Bar. It is necessary to be careful that you provide relevant information without crossing the line and providing extra information that would raise suspicions about behavior not currently being investigated. Sometimes it is advisable, and sometimes it is necessary, to assert privileges. There is no State Bar exception to the attorney client privilege when an opposing counsel or a judge complains about you. We assist our clients in preparing the factual statement, selecting documents, and deciding what issues to address. We send a careful advocacy letter that provides interpretations of the facts and sometimes legal research. Frequently there is existing case or statutory law that helps define the line between where your conduct is acceptable, to where it is negligent but not diciplinable, to where it is disciplinable. Often you don't know about those cases, or where those lines are. Typically, State Bar investigators begin looking at conduct without having a clear sense of what rule, if any, would be violated if you indeed did all the conduct that you are accused of. We frequently represent people who have not violated any Rule, but we have to explain why in a letter brief that goes to the State Bar. In some complicated areas of the law, it is sometimes necessary to provide a lengthy brief to the staff attorney, in order to show that certain conduct was proper, privileged, or otherwise not in violation of the rules. In situations such as this, our understanding of ethics law and your understanding of the substantive law in your own field have to be put together for the proper explanation to the State Bar. In the middle... In the end... VI. PREFILING SETTLEMENT The investigator reports to a staff attorney, who in turn decides to close the case or go forward. If they decide to go forward, we can usually have a frank talk with the prosecuting attorney. A face to face talk gets rid of misconceptions -- one way or another. We have certainly persuaded some prosecutors to close down a case on the eve of filing. But not always. There are cases where a violation of the Rules is clear. In a frank exchange, prosecutors are willing to disclose their evidence, so that you don't spend a lot of money on a defense that won't work. While that situation can lead to formal public prosecution, sometimes it is possible to enter into an ALD, (an Agreement in Lieu of Disciplinary prosecution). An ALD is the State Bar equivalent of diversion, in which you acknowledge the conduct, acknowledge that it was a violation of the rules, and agree to certain remedial classes and tests. In turn, the State Bar agrees not to prosecute you for the offense. It is not always possible to obtain a dismissal or an ALD. But except in the most egregious cases, the State Bar is still willing to engage in a settlement at this stage. This is the equivalent of plea bargaining. You agree to a certain level of discipline and we negotiate the terms of a State Bar stipulation. The advantage to a prefiling stipulation is the same as the advantage to settling any kind of civil suit, or entering into a criminal plea bargain. That is, you get a certain, result. There is a limit to your cost and exposure. You avoid about one or two years of expensive and stressful litigation. The State Bar will hold a pre filing settlement conference on request. It's called the ENEC [Early Neutral Evaluation Conference]. The prosecutor lodges a draft of the formal charges, and we submit our position paper. Both sides meet with a State Bar Court judge, who gives us some sort of reading of what the case looks like. Again, it is quite helpful to be represented by somebody who has appeared before these judges and has a sense of where cases can go -- and where they can't go, too. VII. FORMAL PROSECUTION IN THE STATE BAR COURT If we don't settle, formal State Bar proceedings begin with the filing of a Notice of Disciplinary Charges (NDC) in the State Bar Court. You are served by certified mail; personal service is not necessary. There is no constitutional right to refuse to answer State Bar charges (not to be confused with your right to assert whatever statutory privileges you do have). You are required to file a specific, although unverified, answer. Your answer must specifically indicate which of the allegations you acknowledge and which you contest. Or, you can plead nolo contendere. State Bar rules attempt to avoid motion practice over the content of the NDC. However, it is customary in State Bar cases to indicate certain legal defenses in the answer. Challenges to the existence of the State Bar have never been successful, and they tend to irritate the judges who have the discretion to decide what level of discipline is appropriate if you're found culpable of an offense. Once the NDC and the Answer have been filed, both sides have the right to discovery. The Civil Discovery Act primarily applies. We swap informal discovery whenever we can, to save your costs and get an early look at the prosecution's case. Generally speaking, prosecutors who oppose known defense counsel will generally agree to a total document swap rather than get bogged down in discovery motions. It rarely makes sense to conceal helpful evidence. Before the trial ever starts, a formal pretrial statement will be filed, similar to that filed in Federal courts. Each side has to state its position on the issues in the case. Each side has to disclose its proposed exhibits. The Court has discretion to exclude that which is not disclosed from trial, and frequently does so. If there are legal defenses, the pretrial statement is about the last time they can be raised. State Bar Court judges are thoroughly prepared for the legal arguments that are made at trial, State Bar Court proceedings tend to be an amalgam of both formal and informal procedures. Judges are truly independent of the prosecutors. They are appointed by the Supreme Court. Only one former prosecutor currently sits as a State Bar Judge. Those judges are ready for trial and truly impatient with bogus arguments from either side. They actually read the case law, and they do independent research before we walk in the courtroom. They sit without a jury, using formal rules of evidence. The prosecution must prove its case by clear and convincing evidence. If you are found culpable of one or more disciplinary offenses, there will be a second phase to your trial to determine the level of discipline. Some times we advise you to admit culpability, stipulate to some of the indefensible facts, or plead nolo, to concentrate on lowering the level of discipline. In any event, we put on a full scale mitigation case, including character witnesses, evidence of pro bono and community work, evidence of restitution, rehabilitation, and repentance. After the level of discipline phase is over, the State Bar Court judge will issue a detailed decision, either imposing a reproval; or recommending probation, suspension, or disbarment, to the Supreme Court. The range of discipline is discussed back in Section III. VIII. APPEAL TO THE STATE BAR REVIEW DEPARTMENT Either side may appeal the decision of the State Bar Court hearing judge to the Review Department of the State Bar Court. The Review Department consists of three judges who review the record de novo. The Review Department is required to give great weight to the findings of fact of the hearing judge, and typically defers to all findings based on credibility of witnesses. They rarely permit augmentation of the record. But de novo review means that all issues are open. Either side can lose on appeal what you won at trial. The Review Department is assisted by research attorneys, and will give the record a high level of scrutiny. If there is something the hearing judge overlooked, expect the Review Department to find it. The Review Department is entitled to reweigh the evidence, come up with new conclusions of law, and is not otherwise bound by the fact finding or legal conclusions of the hearing judge. While the Review Department has discretion to accept new evidence, it rarely does. Therefore, the Review Department case usually is done on the record developed at trial. Oral argument is detailed, record oriented, and once again, these judges are very knowledgeable in the applicable law. IX. EFFECTUATION TO THE SUPREME COURT Cases recommending probation, suspension, or disbarment go to the Supreme Court. If nobody has appealed a Hearing Department decision, it goes directly to the Supreme Court. If either side appealed the Hearing Department decision, then the case does not go to the Supreme Court until the Review Department has finished it. Unless one side or the other appeals, then there is no briefing or argument. The Supreme Court reviews the record, then takes action. In the overwhelming number of cases, the Supreme Court approves the recommendation of the State Bar Court. In such a case, the Supreme Court action will usually occur about 70 days after receipt of the record from the State Bar Court. If one side or the other appeals, the Supreme Court has the discretion to accept the appeal, or simply process it as it as if it were not appealed. If the Supreme Court on its own accord decides to take a second look at a case, it will issue an order indicating what issues it wants briefed and argued. Testimonial facts found by the Hearing Judge get great weight, as do discipline recommendations of the Review Department. But once again it is a de novo review. Once again, while the Supreme Court has the discretion to accept new evidence, it rarely does. In most cases, the Supreme Court order takes effect thirty days after it is filed. However, if the attorney has been under an interim suspension pending the discipline process, the Supreme Court order will typically take effect at once. Depending on the level of discipline, you may have to report the outcome to clients, opposing counsel and courts. X. IT ISN'T OVER UNTIL THE FEDERAL LADY SINGS Virtually all Federal District Courts require an Attorney to report discipline in another jurisdiction that resides in disbarment, suspension, or probation. Many require an attorney to report a resignation with charges pending in another jurisdiction. Very often the federal courts impose reciprocal discipline, and usually you want to take the hits all at once. The actual practice in federal court bears little resemblance to their published rules, and the informality varies widely by Court. The same principle applies with Bar memberships federal agencies. Each has its own rules and procedures. It is therefore necessary to let us know which of these other Bars you are admitted to, and whether you or we will handle the reciprocal disciplinary case.
By legislative mandate, the State Bar has set up the Lawyer Assistance Program (LAP) a program for attorneys who have alcohol, drug, or mental health problems that have led into disciplinary issues. You can contact the program directly at 866.436.6644, or at LAP@calbar.ca.gov. LAP is especially good for attorneys who have serious problems and are willing to invest the years and funds it takes to deal with them. If you are accepted by LAP, you may qualify for the Alternative Discipline Program in the State Bar Court. Through that program, you may get a better discipline result, if you successfully complete both LAP and ADP. Apart from the discipline system, many attorneys have found help through The Other Bar. Call them at 800.222.0767. You can obtain mitigation credit for participation, but you can't get into the ADP. The Other Bar is a great resource for the attorney who is ready to give up drugs or alcohol, and who is ready to work with other similarly affected attorneys in the process. Go to a meeting; you may be surprised who you know there.
If you are arrested, you should ask your criminal defense attorney to consult with disciplinary counsel. There are a myriad of State Bar reporting requirements as a criminal cases progresses. If you plea bargain, the exact crime you plead to can have dramatically different disciplinary consequences, even on the same facts. The State Bar does not ignore all misdemeanors. Not all felonies result in disbarment. Attorneys are generally required to report criminal convictions to Federal Courts and Federal Agencies. While they may begin their own disciplinary proceedings, they commonly will wait until the State Bar discipline process is complete before beginning their own. When an attorney is convicted of a crime, or is found guilty, or pleads nolo or guilty, the State Bar begins a disciplinary prosecution under Bus & Prof 6102. The attorney has a duty to report all felony convictions. If the attorney is convicted of a felony, the attorney is placed under interim suspension pending outcome of the State Bar process, §6102(a). If an attorney is convicted of a misdemeanor, or is found guilty, or pleads guilty or nolo, there may be a duty to report under §6068(o)(5). There may be in interim suspension. But in almost all misdemeanor cases, and after all felonies, there is a prosecution. The first inquiry is whether the elements of the crime itself constitute moral turpitude per se. If so, the felony conviction results in summary disbarment. Even a misdemeanor of moral turpitude per se results in an interim suspension pending outcome of the State Bar Court process. If the crime is not moral turpitude per se, the State Bar Court conducts an inquiry on whether the facts and circumstances surrounding the crime constitute moral turpitude or whether the conduct otherwise constitutes Other Misconduct Warranting Discipline (OMWD), In Re Kelley (1990) 52 Cal 3rd 487. We can frequently let you know ahead of time whether or not a conviction of a particular crime will be considered moral turpitude per se or not. Advance knowledge can help guide you in a plea bargain, where the selection of the crime may materially affect the disciplinary process. Similarly, we can frequently let you know what sort of discipline has been imposed on attorneys who were convicted of such violations. This information is in addition to what you can find in reported cases. The opening of a State Bar Court case based on the conviction does not necessarily mean that any disbarment will result. Felonies will result in discipline. Misdemeanors go all over the map All disciplinary cases carry the theoretical threat of anything from a private reproval to disbarment. The State Bar case begins as a public disciplinary prosecution in the State Bar Court. So, take it seriously from the moment of your arrest. The sooner you contact defense counsel, the better chance you have of keeping your license. XIII. CONCLUSION State Bar cases are like other litigation, except the shoe is on the other foot -- you're the client. This process takes a lot of patience; a little humor helps too. The process goes faster if you're the ideal client, one who tells us everything and gives it to us in an organized, clear fashion. If you don't understand something, ask! And remember, this is your case and your life. Take an active part and respond quickly -- both to requests for information and to your monthly bills. We all want to do our jobs, keep our clients happy, make a decent living, and keep the wolves at bay. Our job is to represent you before the State Bar so you can do that. In the short run, the object of the lesson is to persuade the State Bar to go away. In the long run, we can help you with the myriad of ethics and professional responsibility problems that arise in your law practice. We've seen most of the issues before, and we can tell you how different solutions have worked for others in the past. State Bar defense occupies about a third of our practice. We also provide ethics advice to attorneys. Our emphasis is on the practical solutions to problems, solving them with minimal risk of lost fees, malpractice suits, or state bar investigations. |
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