A
BRIEF OVERVIEW OF THE
(More
Than You Probably Wish To Know)
click HERE to see how disciplinary cases are disposed of.
The following is a brief overview of the State Bar Disciplinary System
and is intended solely to acquaint the reader with a broad, general picture. It, of course, cannot cover every situation that arises
within the area of attorney licensing law and should not be relied upon as
source authority for any particular situation that the reader has or may
encounter. For an excellent,
detailed exposition of how the State Bar Disciplinary System operates, you may
wish to consult Vapnek, Tuft, Peck & Wiener, CAL. PRAC. GUIDE: PROFESSIONAL
RESPONSIBILITY, Ch. 11 (The Rutter Group 1998).
There are many ways in which investigations into potential attorney
misconduct are commenced by the State Bar.
Most often, a disgruntled client complains to the State Bar about his or
her attorney. Less frequently, opposing counsel or a judge may refer a
matter for investigation to the Bar. When
a criminal prosecuting attorney is aware that a criminal defendant is also an
attorney, he or she is duty-bound to notify the Bar of the pending charges.
If the attorney is subsequently convicted, the court clerk must notify
the Bar of the attorney’s conviction. Conviction
of crime is a ground for commencement of an investigation by the Bar, as is the
imposition of discipline by the Bar of another jurisdiction on a California
attorney who is admitted in that other jurisdiction.
Whenever any attorney trust account check bounces, the financial
institution on which it is drawn must report such fact to the Bar.
These are just some of the more common methods in which attorney conduct
which may be subject to discipline comes to the attention of the Bar.
Once the Bar decides to commence a formal investigation, it will notify
the attorney in writing of the factual basis of its investigation into the
attorney’s conduct, and give the attorney an opportunity to respond in
writing. At the investigation stage
and prior to the filing of formal disciplinary charges, the matter is
confidential.
An attorney is required to cooperate in the investigation, although the
attorney in his or her response to the Bar may raise valid claims of privilege
(e.g., privilege against self-incrimination if potential criminal liability
attached to attorney’s conduct). However,
the attorney must still affirmatively respond to the Bar and raise
such issue of privilege. Failure to
cooperate with the Bar in its investigation may be a separate cause for
discipline or an aggravating circumstance in assessing discipline against the
attorney in the underlying investigation.
Once the attorney responds to the investigation letter, the Bar may
request a further response, or additional information or documentation.
After the Bar receives all relevant information it may decide to close
the investigation, or issue a resource letter to the attorney.
Such a letter may be sent where there is a probable violation or
potential for a future violation of the Rules of Professional Conduct and/or the
State Bar Act which is minimal in nature and which would not lead to discipline.
The letter will also refer the attorney in question to various resources
which may assist in preventing practice problems in the future.
If, however, the Bar concludes there is reasonable cause to believe that
an attorney has committed a violation of the State Bar Act or Rules of
Professional Conduct, it will send the attorney a “twenty day letter,”
giving the attorney an opportunity to meet with the Bar in advance of its filing
formal disciplinary charges against the attorney to see if a resolution can be
reached prior to the filing of charges. While
it may be possible in some circumstances to convince the Bar in a twenty day
meeting that a resolution short of the imposition of discipline is appropriate,
in all likelihood any resolution at this stage will result in the imposing of
some measure of discipline upon the attorney.
If, however, a resolution cannot be reached at this stage, the attorney
may request an Early Neutral Evaluation conference before a State Bar Court
Judge prior to the commencement of formal disciplinary proceedings. This would
be similar to a settlement conference in Superior Court where the assigned judge
will give the parties his or her evaluation of the strengths and weaknesses of
their respective cases, and what the likely outcome might be if the case were
litigated and proceeded to trial. Settlement
is again encouraged but would more likely than not include some form of
discipline (see our other articles on “The Not So Private Reproval” and
“Possible Outcomes” found elsewhere on this website).
If a resolution is not reached through the Early Neutral Evaluation
process, the Bar will commence formal disciplinary proceedings by filing and
thereafter serving a Notice of Disciplinary Charges on the attorney.
Once charges are filed, the matter becomes a public record and proceeds
through the Hearing Department in the State Bar Court System.
The formal State Bar Court came into existence in 1989, and practice
before it is somewhat unique. Attorney
discipline cases are neither civil nor criminal, nor are they administrative in
nature, although they have features of each.
The State Bar has the burden of establishing attorney culpability by
clear and convincing evidence to a reasonable certainty.
Judges of the State Bar Court are usually assigned cases on a rotating
basis, and will handle all of the proceedings in each individual case from
beginning through trial (there is no jury trial in the State Bar Court).
Once the attorney is served with the Notice of Disciplinary Charges, he
or she must file a response within the time set out in the Rules of Procedure,
or his or her default may be entered, and discipline may be imposed without the
attorney’s participation in the proceedings.
Discovery, similar to that allowed in civil litigation, is permitted for
four months after the filing of the charges.
A certain amount of motion practice is allowed.
Most routine matters, such as status conferences, are held
telephonically, with an initial status conference usually held within the first
thirty days after charges are filed. Often
at the second or third status conference (usually within the first ninety days
after filing) pre-trial and trial dates are set (approximately eight months to a
year after filing of charges). Like
in civil courts, continuances are generally frowned upon.
If the matter proceeds to trial, pre-trial conference statements as well
as the conference itself serve to narrow issues, bind the parties to witnesses
and evidence, and encourage stipulations of undisputed facts.
In addition to the Early Neutral Evaluation conference, the parties may
subsequently request a Voluntary Settlement Confrence (both of these conferences
are held with a judge other than the trial judge, unless the parties agree
otherwise).
As previously stated, the Bar bears the burden of proof of attorney
misconduct. At trial, witnesses (who are subject to cross-examination)
and documentary evidence are presented to the trier of fact.
Often, the accused attorney is called by the Bar as an adverse witness
under Evidence Code Section 776, and must testify (although privilege against
self-incrimination may be invoked as to individual questions if there is
potential criminal liability attaching to the attorney’s conduct).
If the judge determines that the attorney has been found culpable of
professional misconduct, a separate trial is held on discipline.
At the discipline trial, the Bar can present evidence in aggravation
(e.g., attorney’s prior record; lack of cooperation; bad faith), while the
attorney can present evidence in mitigation (e.g., attorney’s lack of prior
record; character witnesses; attorney’s candor and cooperation).
Based upon the violations found, the aggravating and mitigating
circumstances, and prior case law, the judge issues a written decision.
If the judge determines a reproval, either private or public, is
appropriate, the discipline is effective upon the expiration of the time for
appeal. If the judge determines any
suspension, whether stayed or not, or disbarment is appropriate, such discipline
must be adopted by the Supreme Court before it becomes effective.
If the judge determines the Bar did not meet its burden of proof, the
charges are dismissed against the attorney.
Either the Bar or the attorney may seek review (“appeal”) before the
three-judge Review Department of the State Bar Court. Briefs are filed by both
parties and oral argument is held. The
review process can take anywhere from between a year to two years.
The Review Department conducts a de novo review and is not
bound by the factual findings of the trial judge.
Thus, an attorney seeking review may actually subject him or herself to
greater discipline being imposed by the Review Department than that imposed by
the Hearing Judge. The Review
Department issues a written decision, which like that of a Hearing Department
judge, can only be in the form of a recommendation to the Supreme Court if any
period of suspension or disbarment is at issue.
Although a Petition for Review may be filed by either party in the
Supreme Court, in the overwhelming majority of cases the Supreme Court denies
such petitions and rubber stamps the final action of the State Bar Court.