Revised March 1, 2011
Table of Contents
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, in detail, how the California State Bar opens, closes, investigates and prosecutes, accusations of unethical attorney conduct.
The typical State Bar investigation begins with a complaint from a disgruntled client. Our proactive attorney clients often consult us when trouble first appears on the horizon. Our advice always has one eye on the State Bar investigation that might occur if the problem blows up.
Some investigations begin when you comply with your statutory duty to self-report; other investigations begin when one of your cases is reversed on appeal due to attorney conduct. When certain non-discovery sanctions occur, if a trust account check bounces, or you get held in contempt -- any of these can generate an investigation. After a court opinion is issued or a news article is published, the State Bar may initiate a case independently. Complaints are screened, albeit quickly and on the surface.
Some cases never open. The State Bar replies to the complainant that no disciplinary issues are implicated and you never have to explain yourself. Some cases involve client file issues. Read the letter; it may ask for nothing more than a confirmation you have returned the client file. The foregoing are two examples of how attorneys can bring fire in on their own position - you shoot off a reply before the State Bar asks for one, and a non-case morphs into an investigation based on something you wrote.
Cases that open are classified as an "inquiry," an "investigation," a "reportable action," or a "conviction referral." We often garner information from the variations in the standard macro.
Remember the ancient adage about lawyer self-representation? Generally, attorneys make poor advocates for themselves. You are not likely to be effective representing yourself before the Bar.
A 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.
Your personal stake may lead you to be more argumentative than is prudent, or unable to see issues that are plain to others whose egos are not involved. The stonewall approach, typical in criminal defense, generally backfires in this forum. The failure to assert attorney client privilege in the face of a third-party complaint is another amateur error.
When you represent yourself, you are like every injured person who tried to deal pro per with an insurance adjuster. You're expecting the same fair treatment that a suspected criminal wants when talking to the police.
"People do not become State Bar prosecutors to help attorneys."
- Jerome Fishkin
Prosecutors represent the State Bar. They are opposing counsel in your case and you are a party defendant. The Discipline System is an adversary system. The prosecutorial mentality in general is to find fault and fix blame. State Bar prosecutors sometimes 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. Au contraire, that's the kind of behavior that keeps them interested in you.
We hope you will contact us for representation. But if not, contact one of our colleagues in the defense bar -- either ADDC or APRL.
Some complaints appear to be minor matters, and sometimes these are handled by a telephone call urging you to do something about the situation.
Many result in a letter labeled an "inquiry," in which you are asked to explain yourself in matters that appear likely to be unfounded complaints. There is a large gray area between the duty to cooperate and the discretion to keep quiet. A significant number of pro per attorneys provide so much overkill in their response that they pinpoint areas of concern that the complaint analyst didn't even think about. Or they erroneously believe that a stonewall approach will discourage people who have unlimited resources and a suspicious nature. Employing counsel at this stage can be crucial to ending a minor inquiry before it becomes a formal State Bar investigation. So, don't be an amateur; employ counsel at this stage. Otherwise a minor inconvenience can turn into a never-ending nightmare.
"Never pass up an opportunity to keep your mouth shut."
- Kim Willingham
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 settlements or judgments. Banks must report trust account NSF or overdrafts. Attorneys have a statutory duty to report certain adverse court actions or civil settlements.
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 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.
The Superior Court will report any criminal conviction or felony prosecution to the State Bar. In that case, skip directly to section XI, then resume at section VII.
In the beginning...
You will usually first hear about the State Bar investigation when you get a letter from a State Bar investigator requesting certain information, certain documents, and demanding an explanation of behavior that is all too frequently assumed to be true because some angry client wrote it down.
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 there is no client complaint.
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 specialized 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 disciplinable, to where it is disciplinable. 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 alleged conduct. 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...
Probably the most frustrating aspect of a State Bar investigation is the hurry up and wait syndrome. Investigators demand answers on tight time lines, then we may hear nothing for months. Often they gather statements and documents, forward them to staff attorneys, who kick them back for more investigation. In this system, no news is, well, no news. Your case is in the hands of overworked bureaucrats with few real time deadlines. Serious theft cases go to the top of the pile; less serious cases can collect dust. Easy cases move faster than difficult ones.
In the end...
Most investigations close with no adverse action. But a certain percentage of cases are headed towards formal, disciplinary prosecution. At this point, the State Bar equivalent of plea-bargaining may be indicated.
The investigator reports to a staff attorney who, in turn, decides to close the case or go forward. If they decide to go forward, they will outline the likely charges. We get our first look at their file. The evidence disclosure can let us see what the State Bar has missed. Often, no new documents have been obtained for a year or two. Or a staff attorney has read the case summary without reading the source documents. In some cases, we point them to witnesses or documents they missed. We 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.
We will try to negotiate a stipulation.
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 conduct. 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 role of a State Bar prosecutor is to go onto the litigation battlefield and shoot the wounded attorneys."
- Jerome Fishkin
The State Bar Court 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.
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. Thus, it is often necessary to lodge a more complete explanation in your Answer, to deal with the instant availability of the information on the Internet.
State Bar rules attempt to avoid motion practice over the content of the NDC. Challenges to the jurisdiction 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.
Effective January 1, 2011, the State Bar Court has implemented rules of procedure that are nearly identical to those in the Administrative Procedures Act (APA). Thus, there are requirements for immediate swapping of documents on demand, a continuing duty to update the swap, and an exclusionary rule for failure to do so. It is too soon to know how strictly the judges will enforce the rules. Court approval or mutual consent is now needed for certain forms of discovery.
Cases are sent to a settlement Judge shortly before trial. Once again, by this stage the strengths and weaknesses of your case are known. This may be the last chance to obtain real concessions from the prosecutor.
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 those exhibits which are not disclosed. 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.
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 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. The prosecution must prove its case by clear and convincing evidence.
Prior to the promulgation of the new rules, most State Bar Judges were pretty liberal in letting in evidence. After all, their decision can be reviewed de novo by the Review Department and the Supreme Court. However, the Hearing Judge's rulings on credibility are nearly impossible to overturn. Thus, the most important part of the trial will turn on you, the respondent attorney, and how you appear to a Judge who spends every day listening to attorneys explain their conduct.
The new administrative rules of evidence now establish two levels of evidence. Direct evidence, as in Superior Court, is required to prove a case. However, hearsay can be used to supplement and explain direct evidence. In State Bar training classes, it became evident that prosecutors think the change benefits the defense, and defense attorneys think the change will benefit the prosecutors. In reality, the new rules create opportunities for the prepared and traps for the unprepared.
According to the State Bar management in 2009, prosecutors appealed one third of all cases to the Review Department. Similarly, the Supreme Court can call up any discipline case on its own accord. Both reviews are de novo but based on the trial record. Thus, your trial record should be meticulous and complete.
If you are found culpable of one or more disciplinary offenses, the Judge will impose a reproval or recommend probation, suspension, or disbarment. Sometimes we advise you to admit culpability, stipulate to the facts, or plead nolo, in order 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.
The State Bar Judge's decision is posted on your membership listing. The NDC and Answer are removed. If you are exonerated, all reference to the case will be removed from your membership records site. However, the court docket will remain on the Internet site of the State Bar Court.
A reproval takes effect at once. Other levels of discipline do not take effect until the Supreme Court acts. At the current time, any discipline remains on your membership records site for the rest of your life. The State Bar court docket, and the Supreme Court docket, remain forever.
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 it 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.
After the case is submitted, the Review Department will issue a written opinion which, in turn, may be published in the California State Bar Court Reporter. Published decisions of the Review Department are binding precedent upon the State Bar Court trial Judges. The Reporter is gradually becoming a commonly cited source of ethics law.
Whether your case is "published" or "not for publication" in the State Bar Court Reporter, the Review Department Decision is posted on your membership record listing on the website and the State Bar Court now posts the unpublished opinions on its 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 at the Supreme Court. 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 60-70 days after receipt of the record from the State Bar Court 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.
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.
From the day you were first asked to explain yourself, to the effective date of the Supreme Court order, about 12 to 30 months has transpired.
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.
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 actual, suspension.
For more serious cases, the State Bar Court can recommend to the California Supreme Court that an attorney be suspended. If there is a period of suspension, customarily the minimum period is thirty days and the customary maximum period is three years.
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. You may have conditions specific to your case, such as restitution, trust account reports, or alcohol programs. Reports are due quarterly. Every disciplined attorney is expected to attend one day of State Bar Ethics School, plus take, and pass, the Multi-State Professional Responsibility Exam.
Some attorneys 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.
There is no present way to expunge your disciplinary record. Our professional organization, ADDC (Association of Discipline Defense Counsel) has prepared an expungement proposal for presentation to the California Supreme Court. The State Bar Board of Governors has refused to circulate it for public comment.
Virtually all Federal 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 formality 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.
Most states require that you self report discipline from another jurisdiction. So do some state agencies.
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. 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 (ADP) 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.
The State Bar does not ignore all misdemeanors.
Not all felonies result in disbarment.
Most criminal convictions will result in a State Bar prosecution. Thus, there are no investigations as spelled out above in §§ IV - VI. You receive a "Notice of Hearing" to begin the case, and you are required to file a written response.
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 a felony conviction. 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 an 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 those agencies may begin their own disciplinary proceedings, they commonly will wait until the State Bar discipline process is complete before doing so.
The first State Bar issue is whether the elements of the crime itself constitute moral turpitude per se. If so, the felony conviction results in summary disbarment. 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. Go back to § VII of this essay.
Disciplinary cases are adversarial matters in which your career is at stake. Experienced defense attorneys know the ropes. 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 to a career prosecutor.
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. Others will try to take advantage of the amateur. Counsel like us tends to be efficient and dispassionate; we don't take it personally. 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.
[Jerome once told an investigator that the attorney's behavior was TSTP. When he asked what the acronym 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. You can't do that sort of thing pro per.]
We are members of a statewide bar association of attorneys who specialize in discipline defense; Jerry is the current president. We are also members of a national bar association of attorneys who specialize in legal malpractice and attorney discipline. We participate actively on listservs in both groups. We are up to date on the law, the trends, and what is actually happening today when prosecutors and defenders meet to resolve cases. We cannot guarantee a happy ending. We can promise you representation that is practical, efficient, and knowledgeable.