State Bar Discipline from A to Z
California State Bar Defense Lawyers
You put a lot of effort into getting that license. Let's put a lot of effort into keeping it.
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 article is to explain how the California State Bar investigates, closes, and prosecutes accusations of unethical conduct. Welcome to the State Bar discipline system.
II. EXECUTIVE SUMMARY
This page is a summary of the Revised March 1, 2012 discipline process. A more detailed version is available here.
Over 10,000 California attorneys are investigated each year, but very few are disbarred. It's always distressing, even when your case is closed early. It's more distressing and a lot more expensive if you have to go through a contested trial. In our office, success is a closed investigation. A winning trial is a draw.
The typical State Bar investigation begins with a complaint received from a disgruntled client. No matter the source, all are evaluated. Some cases are closed on the face of the complaint and you are not even notified. But if the case is opened, somebody screens it and decides whether to make a quick inquiry or take an in depth look and do a formal investigation. You get a letter. We understand the macros; we often understand the mindset of the sender from the get go. Since the Fall of 2011, the process moves very fast. It is necessary to provide your explanation in a short period of time.
After receipt of any explanation, coupled with whatever investigation that is done, the case is reviewed by a staff attorney. If there is no provable case, the investigation ends. If it appears that there is a minor ethics offense, you might get a nondisciplinary warning letter or offer of diversion. Otherwise, they call you in for a chat. Some cases end there. Others go to an ENEC (Early Neutral Evaluation Conference) with a real State Bar Court Judge. Some cases end there. Others plea bargain there. If there is any chance for a private ending, the ENEC is it.
Public formal proceedings begin with the filing of formal charges in the State Bar Court. The charges are placed on the membership records site under your name, along with your Answer. Cases are adversary proceedings. Effective January 1, 2011, cases are now tried under APA type rules, rather than Superior Court rules of evidence. Upon demand, either side can obtain full, continuing, discovery from the other side on a very short timetable. Judges issue detailed findings of fact and conclusions of law, which then replace the charges and Answer on the website. If you are exonerated, it will come off the website in due time. If you are disciplined, it is there for the rest of your life.
Both sides have the right to an intermediate appeal to the State Bar Court Review Department with a de novo review based on the trial record. Either side can also ask the California Supreme Court to hear the case after that.
Results can range from a reproval to probation, to suspension or disbarment.
After State Bar discipline, you will likely face reciprocal discipline in the Federal Courts and any other place you are licensed.
For a long version of this, click here Welcome to the California State Bar Discipline System
What follows is an in-depth description of the entire process.
III. THE STATE BAR INVESTIGATION
In the beginning...
While unhappy clients generate most complaints, State Bar investigations can begin in a variety of ways: ethics complaints made to the State Bar by opposing counsel, opposing parties, unpaid medical lien holders, and judges. Malpractice carriers are required to report certain kinds of lawsuits and settlements or judgments. Banks must report trust account NSF or overdrafts.
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 cannot evaluate the validity of the complaint without hearing a response from the attorney, perhaps by 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 become seemingly petty and mean-spirited.
It also helps to be polite. We are always surprised by 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. Conversely, that's the kind of behavior that keeps them interested in your potential case.
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, 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.
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 disciplinal, to where it is disciplinal. Often you do not 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 of which you are accused. 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...
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 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, and 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.
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 may plead nolo contendere.
The NDC and Answer are posted on your Membership Records listing on the State Bar's website. WE counsel you on what you might want to put in your Answer to deal with the often misleading allegations in the NDC.
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. To save your costs and get an early look at the prosecution's case, we swap informal discovery whenever we can. 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 must state its position on the issues in the case and 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 and specified Constitutional Officers. 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 into the courtroom. They sit without a jury, using formal rules of evidence, and the prosecution must prove its case by clear and convincing evidence.
According to the State Bar management, prosecutor now appeals one third of all cases. Thus, your trial record should be meticulous and complete. The Supreme Court can call up any discipline case and review it de novo.
If you are found culpable of one or more disciplinary offenses, the Judge will recommend a level of discipline. Sometimes 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 below.
The State Bar Judge's decision is placed on your membership listing. The NDC and Answer are removed. A reproval takes effect at once. Other levels of discipline do not take effect until the Supreme Court acts.
Either side may appeal the Hearing Department decision 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. De novo review means that all issues are open - either side can lose on appeal what you won at trial.
Filing for Review puts the Hearing Department Decision on hold. However, the State Bar leaves that Hearing Department Decision on your Membership Records listing.
The Review Department 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 is usually 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.
Whether your case is "published" or "not for publication" in the State Bar Court Reporter, it does not replace the Hearing Department Decision on the website.
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. 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. Depending on the level of discipline, you may have to report the outcome to clients, opposing counsel and courts.
Virtually all Federal District Courts require an Attorney to report discipline in another jurisdiction. 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 to Bar memberships in Federal agencies. Each has its own rules and procedures; therefore, it is necessary to let us know to which of these other Bars you are admitted, and whether you or we will handle the reciprocal disciplinary case.
The lowest level of discipline is a private reproval. If the private reproval occurs after the filing of formal State Bar charges, it is a matter of public record. Otherwise it is not a public record item; however, the complainant is told about it. If you have a subsequent State Bar discipline case, if you are being considered for a judicial appointment, or if you are undergoing a security check, the existence of private reproval will be disclosed.
The next highest level of discipline is a public reproval. It is communicated in one of the State Bar's regular press releases throughout California. Reprovals are imposed by the State Bar. Other forms of discipline do not take effect until the Supreme Court acts.
The next level of discipline is probation with stayed, but not presently actual, suspension.
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, plus 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.
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 myriad State Bar reporting requirements as a criminal case progresses. If you plea bargain, the exact crime you plead to can have dramatically different disciplinary consequences, even on the same facts.
Most criminal convictions will result in a State Bar prosecution. Thus, skip sections I - IV of this article and begin at §V.
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.
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. The first State Bar 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. Advance knowledge can help guide you in a plea bargain, when 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 previously. 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 and misdemeanors are 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.
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. If we can't do that, then damage control is the goal.
In the long run, we can help you with the myriad ethical and professional responsibility issues that arise in your law practice. We have 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, and we also provide ethics advice to attorneys. Our emphasis is on practical solutions to problems: solving them with minimal risk of lost fees, malpractice suits, or State Bar investigations.